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[No. L-5371. March 26, 1953]
The People of the Philippines, plaintiff and appellee, vs. Aquino
Mingoa, defendant and appellant.
Criminal Law; Evidence; Malversation of Public Funds; "Prima Facie"
Presumption of Guilt.—"There is no constitutional objection to the passage
of a law providing that the presumption of innocence may be overcome by a
contrary presumption founded upon the experience of human conduct, and
enacting what evidence shall be sufficient to overcome such presumption of
innocence." Article 217 of the Revised Penal Code creates a presumption of
guilt once certain facts are proved. It makes the failure of a public officer to
have duly forthcoming, upon proper demand, any public funds or property
with which he is chargeable, prima facie evidence that he has put such
missing funds or property to personal use. The presumption is reasonable
and valid. People vs. Mingoa, 92 Phil., 856, No. L-5371 March 26, 1953 .
REYES, J.:
Found short in his accounts as officer-in-charge of the office of the municipal
treasurer of Despujols, Romblon, and unable to produce the missing fund
amounting to P3,938 upon demand by the provincial auditor, the defendant
Aquino Mingoa was prosecuted for the crime of malversation of public funds
in the Court of First Instance of Romblon, and having been found guilty as
charged and sentenced to the corresponding penalty, he appealed to the
Court of Appeals. But that court certified the case here on the ground that it
involved a constitutional question.
The evidence shows that it is not disputed that upon examination of his
books and accounts on September 1, 1949, defendants, as accountable
officer, was found short in the sum above-named and that, required to
produce the missing fund, he was not able to do so. He explained to the
examining officer that some days before he had, by mistake, put the money
in a large envelope which he took with him to show and that he forgot it on
his seat and it was not there anymore when he returned. But he did not
testify in court and presented no evidence in his favor.
We agree with the trial judge that defendant's explanation is inherently
unbelievable and cannot overcome the presumption of guilt arising from his
inability to produce the fund which was found missing. As His Honor
observes, if the money was really lost without defendant's fault, the most
natural thing for him to do would be to so inform his superiors and apply for
release from liability. But this he did not do. Instead, he tried to borrow to
cover the shortage. And on the flimsy excuse that he preferred to do his
own sleuthing, he even did not report the loss to the police. Considering
further as the prosecution points out in its brief, that defendant had at first
tried to avoid meeting the auditor who wanted to examine his accounts, and
that for sometime before the alleged loss many teachers and other
employees of the town had not been paid their salaries, there is good
ground to believe that defendant had really malversed the fund in question
and that his story about its loss was pure invention.
It is now contended, however, that lacking direct evidence of actual
misappropriation the trial court convicted defendant on mere presumptions,
that is, presumptions of criminal intent in losing the money under the
circumstances alleged and presumptions of guilt from the mere fact that he
failed, upon demand to produce the sum lacking. The criticism as to the first
presumption is irrelevant, for the fact is that trial court did not believe
defendant's explanation that the money was lost, considering it mere cloak
to cover actual misappropriation. That is why the court said that "whether or
not he (defendant) is guilty of malversation for negligence is of no moment .
. . " And as to the other presumption, the same is authorized by article 217
of the Revised Penal Code, which provides:
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by
any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal use.
The contention that this legal provision violates the constitutional right of the
accused to be presumed innocent until the contrary is proved cannot be
sustained. The question of the constitutionality of the statute not having
been raised in the court below, it may not be considered for the first time on
appeal. (Robb vs. People, 68 Phil., 320.)
In many event, the validity of statutes establishing presumptions in criminal
cases is now settled matter, Cooley, in his work on constitutional limitations,
8th ed., Vo. I, pp. 639-641says that "there is no constitutional objection to
the passage of law providing that the presumption of innocence may be
overcome by contrary presumption founded upon the experience of human
conduct, and enacting what evidence shall be sufficient to overcome such
presumption of innocence." In line with this view, it is generally held in the
United States that the legislature may enact that when certain facts have
been proven they shall be prima facie evidence of the existence of the guilt
of the accused and shift the burden of proof provided there be rational
connection between that facts proved and the ultimate fact presumed so
that the inference of the one from proof of the others is not unreasonable
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 2

and arbitrary because of lack of connection between the two in common

experience. (See annotation on constitutionality of statutes or ordinances
making one fact presumptive or prima facie evidence of another, 162 A.L.R.
495-535; also, State vs. Brown, 182 S.E., 838, with reference to
embezzlement.) The same view has been adopted here as may be seen
from the decisions of this court in the U.S. vs. Tria, 17 Phil., 303;
U.S. vs. Luling, 34 Phil., 725; and People vs. Merilo, G.R. No. L-3489,
promulgated June 28, 1951.

The statute in the present case creates a presumption of guilt once certain
facts are proved. It makes the failure of public officer to have duly
forthcoming, upon proper demaand, any public funds or property with which
he is chargeable prima facie evidence that he has put such missing funds or
property to personal use. The ultimate fact presumed is that officer has
malversed the funds or property entrusted to his custody, and the
presumption is made to arise from proof that he has received them and yet
he has failed to have them forthcoming upon proper demand. Clearly, the
fact presumed is but a natural inference from the fact proved, so that it
cannot be said that there is no rational connection between the two.
Furthermore, the statute establishes only a prima facie presumption, thus
giving the accused an opportunity to present evidence to rebut it. The
presumption is reasonable and will stand the test of validity laid down in the
above citations.

There being no reversible error in the decision appealed from, the same is
hereby affirmed, with costs.

No. L-53586. January 30, 1982.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
PONCIANO LUMAGUE, JR., MARIO LUMAGUE, ROLANDO LUMAGUE
and JUANITO LUMAGUE, accused whose death sentences are under
review.
Criminal Law; Plea of guilty made by Juanito Lumague, his being a fugitive
from justice and evidence adduced show that said accused is guilty of the
killing of the offended party.—With respect to Juanito Lumague, who
withdrew his plea of not guilty, who was tried separately and whose guilt
was also established by means of the evidence presented against him, we
find that the counsel’s contentions are devoid of merit. Juanito’s guilt was
proven beyond reasonable doubt. His plea of guilty and the evidence
introduced by the prosecution destroyed the presumption of innocence in his
favor. There is conclusive evidence that he was the one who stabbed
Regalado. In doing so, he conspired with the other assailants of the victim,
particularly with the assailant who treacherously struck Regalado on the
back with a hoe. Even Juanito’s mother admitted that he took part in the
assault (408-9, 413-4). And, of course, the fact that Juanito was a fugitive
from justice for several months is an indication of his guilt.
Same; Plea of guilty not mitigating if made after prosecution had commence
the presentation of evidence.—The trial court correctly held that the killing
was murder qualified by treachery and abuse of superiority and aggravated
by cruelty. Hence, death is the proper penalty. Juanito’s plea of guilty is not
mitigating because it was made after the prosecution had commenced the
presentation of its evidence.
Same; Constitutional Law; An accused person should be given, the
opportunity to testify in his behalf and to present additional evidence.—“Due
process of law in a criminal prosecution consists of a law creating or defining
the offense, an impartial tribunal of competent jurisdiction, accusation in due
form, notice and opportunity to defend, trial according to established
procedure, and discharge unless found guilty” (16A C.J.S. 617). The
constitutional right of the accused to be heard in his defense is inviolate. “No
court of justice under our system of government has the power to deprive
him of that right.” (Abriol vs. Homeres, 84 Phil 525, 534.) Fundamental
fairness, which is the essence of due process, requires that the three
accused should be allowed to testify on their defenses and to present
additional evidence to prove their innocence.
Fernando, C.J.:
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 3
Takes no part insofar as the separate decision imposing the death sentence
on Juanito Lumague and concurs as to the setting aside of the death
sentence imposed on Ponciano, Mario and Rolando, all surnamed Lumague.
He likewise concurs with the observation of Justice Abad Santos in his brief
separate opinion.
Abad Santos, J., concurs in the result
Evidence; Ducha’s sworn statement should be disregarded as he did not
testify in court.—Ducha’s sworn statements (Exhibits E and F) should be
totally disregarded. Since he did not testify and hence could not be cross-
examined, they are hearsay. They are prejudicial to the accused.
Same; Criminal Procedure; The trial court should view the social and
economic backgrounds of the accused in a different light For their poverty
society must assume its share of the blame.—I would urge the trial court
when it renders another decision in the case of Ponciano, Mario and Rolando
Lumague to view their social and economic backgrounds in a different fight.
The decision appears to indicate that because of their life-styles they have a
proclivity to commit crime. Maybe it is so. But it should be remembered that
they did not choose to be poor and for their poverty society must assume its
share of the blame.
De Castro, J.:
I concur with Justice Ericta’s observations.
Ericta, J., concurs and dissents:
Criminal Law; Cruelty is not present as there was no proof that accused
sadistically augmented the wrong done by causing another not necessary for
the commission of homicide even if there were 36 stab wounds.—In the
case of PP vs. Juan Jumauan alias Juancho Jumauan, 98 Phil. 1, the lone
defendant inflicted upon the deceased 13 wounds in all. But this Court
refused to appreciate the aggravating circumstance of cruelty, because there
was no showing that the defendant “deliberately and inhumanly increased
the suffering of the deceased.” The test is whether the accused deliberately
and sadistically augmented the wrong by causing another wrong not
necessary for its commission or inhumanly increased the victim’s suffering or
outraged or scoffed at his person or corpse (People vs. Lacao, 60 SCRA 89).
People vs. Lumague, Jr., 111 SCRA 515, No. L-53586 January 30, 1982
PER CURIAM:

This is a murder case. Early in the morning of July 25, 1977, Antonio A.
Regalado, 39, a credit investigator of the Social Security System, was
maliciously killed in the Marikit Subdivision, Marikina, Rizal.
The postmortem examination revealed that he had fourteen incised wounds,
two lacerated wounds, ten punctured wounds and ten stab wounds, or
thirty-six wounds in all, eight of which were fatal because they affected his
vital organs like his lungs, liver, heart and intestines (Exh. A). The wounds
were located in different parts of his body: front and back, head, arms, legs,
abdomen, knees, chest and shoulders (Exh. B). Obviously, he had been
assaulted by more than one person.
The incised and stab wounds were caused by a bladed weapon such as a
kitchen knife. The lacerated wounds were caused by a blunt instrument such
as a piece of wood or iron bar. The punctured wounds were caused by a
pointed instrument such as an icepick.
Elma Icater Regalado, a thirty-nine-year-old business-woman, the victim’s
widow, testified that she spent P25,000 for the funeral of her husband and
for miscellaneous obligations (Exh. J to J-8). Aside from his widow, the
deceased was survived by his two children, Ian, 4 and Shiela, 6. In her letter
to General Romeo C. Espino, she said (Exh. K):
“In our own little world, my husband and I planned the future of our
children.
“Ma. Shiela was to be a nurse while L. Ian, x x x was to be a doctor
according to his wish. We planned and rejoiced in our little hopes even when
life was difficult, until last July 25, 1977 at about 0030 Hrs., when a gang of
hoodlums pounced upon my husband and his companions while they were
on their way home and robbed him and brutally and mercilessly murdered
him, and with him, the beautiful dreams we had for our children.
“Even a mad dog or an abominable criminal did not deserve his manner of
death! He, who never harmed anybody nor spanked his children out of love,
lay there in a muddy street of the Marikit Subdivision, gasping for breath
and calling our x x x son even as his assailants took turns in stabbing him
and pummeling him with a garden hoe that broke at the handle as it hit my
helpless husband as he lay on the ground.
“Our house that was once a happy home when he was around is no longer
the same since he has gone. Our little girl, Ma. Shiela, eats her breakfast
silently with tears streaming down her face; our son L. Ian keeps asking me
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when his father will wake up, and I, will never get used to the emptiness
and the void that he has left behind.”
The Marikina police could not solve the crime. At the request of Mrs.
Regalado, General Espino referred the case to the Constabulary criminal
investigation service (CIS) at Camp Crame.
As a result of the investigation, the four Lumague brothers, Ponciano, Jr.,
27, Rolando, 25, Mario, 23, and Juanito 21, and their brother-in-law, Rodolfo
de la Cruz, were charged with murder for the killing of Regalado. Ponciano,
Rolando and Mario were arrest on August 20, 1977. Juanito was arrested on
October 10, 1977 when the prosecution had already finished the
presentation of its evidence against his three brothers. De la Cruz is at large.
The Lumague brothers came from a family of five boys and five girls. They
grew up in the slum area of Tondo, Manila. Their parents were natives of La
Union. The father, a convict, was killed by a member of the Oxo gang (p.
138, Record).
Even before the Lumague brothers were implicated in the killing of
Regalado, Rolando had been charged in the municipal court of San
Fernando, La Union with frustrated murder and slight physical injuries (Exh.
L and M). In the same court, Ponciano was charged with frustrated homicide
(Exh. P). He was also charged in the provincial fiscal’s office of La Union
with direct assault of an agent of a person in authority and robbery (Exh. R
and S).
Ponciano is married with four children. He used to be a shoe repairman. He
finished grade four. Rolando is married with three children. He finished
grave five. He used to be a tricycle driver. Mario is married with three
children. He finished grade three. He was jobless.
The probation officers found the Lumague brothers to have marked criminal
tendencies and to have a propensity for anti-social behavior (p. 139,
Record).
Trial of Ponciano, Rolando and Mario Lumague.—These three brothers were
tried first because the other two accused, Juanito Lumague and Rodolfo de
la Cruz, were at large. According to the prosecution, in July, 1977, the
Lumague brothers, with their mother, Emerenciana Morales, and their sister
and brother-in-law, Rodolfo de la Cruz, were renting from Walter Romero
Gutierrez a shack or “barong-barong” in the Marikit Subdivision in Marikina
near the residence of Virgilio

At about eleven o’clock in the evening of July 24, 1977, Regalado, with his
friends, Roberto Asuncion, Gerardo A. Ducha, Lorenzo Gravador and Rogelio
Bautista, had a drinking spree at the Havana Pub and Beerhouse located at
Barrio Concepcion, Marikina, Metro Manila. Each of the five drank three
bottles of beer. They watched the floor show.
Shortly after midnight, the group left that place and, as it was curfew time,
they decided to walk to Bautista’s house in the subdivision about a kilometer
away and sleep there. (Regalado was a resident of 5-C Annapolis Street,
Cubao, Quezon City, a neighbor of Asuncion who resided at 5-D Annapolis
Street.)
What happened while the group was walking was testified to by two
eyewitnesses, Asuncion, 30, and Pacunayen, 21, a high school graduate,
who, as noted above, was residing at a house near the shack where the
Lumague family was staying and who claimed to have been a victim of an
assault perpetrated by the members of the Lumague family in June, 1977.
Asuncion testified that he and Regalado were walking together. Gravador
was ahead of them. Bautista and Ducha followed Regalado and Asuncion.
While walking on the street in front of the shack occupied by the Lumague
family and Pacunayen’s house, Asuncion heard Ducha shouting that Bautista
had been stabbed. When Asuncion looked behind, he noticed that Ducha
and Bautista were running because they were being pursued by two
persons.
Asuncion’s impulse was to follow Bautista and Ducha but after taking a few
steps, he turned around and looked at the place where he had left
Regalado. He saw Mario Lumague beating Regalado on the back with a hoe
(Exh. D). Asuncion was about two fathoms away. Regalado fell on the
ground face down. Asuncion got a stone and threw it at Mario.
Mario pulled Regalado to a dark grassy place near the lighted street. Four
persons approached Regalado. Asuncion identified three of them as the
brothers Ponciano, Mario and Rolando Lumague. Ponciano hit Regalado
many times with his fist and struck him on the back with an adobe stone.
Rolando also threw an adobe stone at the head of Regalado and boxed him
many times. Juanito repeatedly stabbed Regalado. Rodolfo de la Cruz
clobbered Regalado with a club (“pamalo”) about two feet long.
Then, Mario who was armed with a hoe, turned his attention to Asuncion,
Ducha and Bautista who fled upon his approach. Mario pursued them. He
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 5
did not overtake them. Shortly thereafter, the five assailants left the place
where they had assaulted Regalado.
Asuncion approached Regalado who was bloodied all over but was still
breathing. Asuncion directed Bautista to fetch a vehicle. Ducha went to the
police station. When a taxicab passed by, Asuncion hailed it and placed
Regalado inside the taxicab. He was brought to the E. Rodriguez Hospital
but was already dead on arrival thereat.
Asuncion’s testimony is a confirmation of his sworn statements dated August
8 and 22, 1977 before the Constabulary investigator of the CIS police
intelligence section at Camp Crame (Exh. C and C-2).
Pacunayen, the other prosecution witness, a neighbor of the Lumague
family, who was acquainted with the members thereof, testified that at past
midnight on July 25, 1977 he was in the balcony of his house overlooking
the lighted street.
He witnessed the assault on Regalado which was perpetrated by the four
Lumague brothers and their brother-in-law Rodolfo de la Cruz. Pacunayen,
who was at a distance of fifteen meters from the scene of the assault,
corroborated the particulars thereof as narrated by Asuncion. Pacunayen’s
testimony is a confirmation of his sworn statement dated August 9, 1977
before the Constabulary investigator of the CIS police intelligence section at
Camp Crame (Exh. G).
Ducha, who, like Gravador and Bautista, did not testify, executed sworn
statements dated August 11 and 22, 1977 before the Constabulary CIS
investigator (Exh. E and F). Ducha, 25, a high school graduate, narrated
how he and Bautista encountered a person who tried to stab Bautista. Then,
Ducha saw another person beating Regalado with a hoe. At a confrontation,
Ducha identified Mario as the wielder of the hoe, Ponciano as the one who
assaulted Regalado with an adobe stone and Rolando as the one who boxed
Regalado (pp. 79-83. Record).
Another documentary evidence of the prosecution is the hardly legible sworn
statement of Mario Lumague taken by the same Constabulary investigator
(Exh. H, pp. 87-90, Record).
The investigator, before interrogating Mario, warned him that anything that
he would say regarding the death of Regalado would be used against him in
court and that he (Mario) had the rights (1) to remain silent and not to
answer any question that would be prejudicial to him, (2) to have counsel,

(3) to be investigated in the presence of his lawyer and (4) to have counsel
de oficio if he could not afford to hire his own lawyer.
Then, the investigator asked Mario whether after being apprised of his
constitutional rights he was willing to give a voluntary statement and to sign
an acknowledgment that he understood his constitutional rights. Mario
answered in the affirmative. He then signed the following certification,
amounting to a waiver of his constitutional rights, which formed part of his
statement:
“Ito ay nagpapatunay na nauunawaan kong lahat ang aking mga karapatan
na napaliwanag sa akin ng inbestigador gaya ng pagbibigay ng Salaysay na
kusang loob, at hindi na rin kukuha ng abogado dahil katotohanan lamang
ang aking sasabihin.” (Exh. H-1, p. 87, Record.)
Mario’s version in his statement is that he and Juanito were in the Havana
Pub and Beer Garden from seven to ten o’clock in the evening of July 25
(should be 24), 1977. At around eleven o’clock, when Mario was already in
his residence at the Marikit Subdivision (where he lived with his brothers,
mother and brother-in-law) he heard a shout coming from the street in front
of the house and the sound of an object hitting the roof (“kalabog”) and he
saw Juanito going out of the house.
Then, later, Beth, the sister of his brother-in-law, informed Mario that some
persons had ganged up against Juanito. Mario came out of the house and
allegedly saw Juanito prostrate on the street in front of their house. Mario
reentered the house, got a hoe and helped Juanito in resisting his four
assailants who were holding stones and assaulting Juanito. Mario clubbed on
the head the person holding Juanito. Juanito got a kitchen knife from the
house and repeatedly stabbed the person whom Mario had clubbed on the
head and who was sitting on the ground. The assaulted person fell on the
ground. Mario and Juanito ran away.
Mario in his statement disclosed that the persons staying in the house at the
Marikit Subdivision were Rodolfo de la Cruz and his wife Hermenegilda
(Mario’s sister), Ildefonsa or Perlita Lumague, Reynaldo Lumague, Beth de la
Cruz, Lita Lumague (Mario’s wife) and Juanito (No. 32, Exh. H).
Mario said that only he himself and Juanito assaulted Regalado but he
(Mario) was not sure whether he was the only one who killed Regalado (No.
40, Exh. H).
The version of the defense is that Juanito Lumague was the sole assailant of
Regalado. Ponciano, Rolando and Mario presented as witnesses their mother
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Emerenciana Morales and Angelita Ramos, Eleno Gomez and Winnie
Camacho to prove their defense of alibi.
Emerenciana, a sixty-nine-year-old widow, testified that in July, 1977 she
resided with the spouses Hermenegilda Lumague and Rodolfo de la Cruz in
the house which they had been renting for three months in the Marikit
Subdivision. In the evening of July 24, 1977 she went to bed at eleven
o’clock. She was awakened because of the noise caused by some persons
who were passing near the house and who were challenging the Ilocanos to
a fight. She came out of the house and saw five men who were very noisy.
She advised them to go home because it was already very late. They
allegedly answered that they did not observe the curfew and they cursed the
President for enforcing it. Emerenciana said that the five men pushed her
towards the door of her house and she fell on the ground. She was allegedly
stoned by the five noisy individuals. She was hit in the cheek, chest, left foot
and front part of her body. A woman named Marilou (Angelita) was also
stoned and her foot was injured (“napilay”) (412).
Emerenciana admitted that when the incident happened she, her children
and son-in-law were staying in the house but when asked to clarify her
answer she said that her daughter Hermenegilda, son-in-law Rodolfo de la
Cruz and her grandchildren were staying in the house (398). She declared
that she did not know who killed Regalado and that when Regalado was
killed her four sons “were not there” (399), meaning that Rolando, Ponciano
and Juanito were in the province, Mario was in Tondo and Rodolfo was in
the house (400-3). When pressed by counsel de oficio to clarify the
whereabouts of Juanito, Emerenciana answered that Juanito arrived in the
house when Emerenciana was pushed by the five persons (406-9).
Emerenciana categorically declared that Ponciano never resided with her in
Marikina (410-11). She testified that when Juanito was boxed by the men, a
fight ensued between them and Juanito. She admitted that Juanito had
previously been confined in the Madrigal Rehabilitation Center for having
been involved in a homicide case with his brother-in-law, Maximino Dacanay.
Angelita Ramos, 20, a helper of Emerenciana, testified that Pacunayen used
to go to Emerenciana’s house. In the afternoon of July 24, 1977, Ponciano
was not in the house in Marikina but was in Bauang, La Union, Mario was in
Tondo and Rolando was in Barrio Ambangonan, Pugo, La Union, but Juanito
was in Emerenciana’s house in the Marikit Subdivision, Marikina.
Angelita corroborated Emerenciana’s testimony that at about midnight on
July 24 five persons passed by Emerenciana’s house and challenged the

Ilocanos to step out. Emerenciana came out of the house and told the five
persons to go home. She was pushed by the five persons and she fell on the
ground.
At that juncture, Juanito and Pacunayen arrived. Regalado allegedly boxed
Juanito. The five persons threw stones and the witness, Angelita, was hit in
the ankle. Pacunayen assaulted Regalado with a hoe. Regalado fell on the
ground face down. Pacunayen repeatedly stabbed Regalado (461).
Because Angelita was not available for cross-examination, her testimony on
direct examination was stricken out of the record (506).
Eleno Gomez, 50, a farmer, a resident of Barrio Quinavite, Bauang, La
Union, and a first cousin of Julian Camacho, who in turn is a first cousin of
the Lumague brothers, testified that in the evening of July 24, 1977 he
acted as guard at a dance held on the occasion of a wedding in Barrio
Quinavite and that Ponciano, Rolando and Mario were present at that dance
(475). Juanito and De la Cruz were not present at that dance. A few
moments later, Gomez testified that Rolando and Mario were not present at
the wedding party (489).
Winnie Camacho, a twenty-three-year-old housewife, whose husband is a
first cousin of Rolando, testified that on July 24 and 25, 1977 Rolando was
at her house in Barrio Ambangonan, Pugo. He planted rice on July 24. The
next day he went fishing in the river.
Decision in the case of Ponciano, Rolando and Mario Lumague.—At the
conclusion of Winnie’s testimony on January 31, 1978, defense counsel
Galvan announced that he would present the accused as witnesses at the
next hearing scheduled on February 24. That hearing was not held. The case
was reset for March 14. No hearing was held on that date for reasons not
shown in the record.
On that date, the trial court issued an order requiring the prosecution to
present its memorandum within ten days and giving defense counsel Galvan
five days within which to file a reply memorandum. It scheduled on April 18
the promulgation of its sentence.
The prosecution in a motion dated March 20, 1978 offered its Exhibits L to S
which were marked during the cross-examination of the defense witnesses.
Galvan objected to Exhibits L, M and N. He did not make any comment on
Exhibits P to S because copies thereof were not attached to the motion.
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 7
The prosecution filed its memorandum on April 5. Galvan was furnished with
a copy thereof. He did not submit his reply memorandum. As scheduled, the
death sentence against Ponciano, Rolando and Mario was “dictated and
promulgated in open court” on April 18, 1978.
The trial court convicted Ponciano, Rolando and Mario Lumague of murder,
sentenced each of them to death and ordered them to pay solidarily to the
heirs of Regalado an indemnity of thirty-two thousand pesos. Treachery and
abuse of superiority were considered qualifying circumstances. Cruelty was
appreciated as a generic aggravating circumstance. The trial court did not
give credence to the alibis of the accused.
The trial court in its decision explained that the defense waived its right to
present further evidence after it failed to present such evidence in spite of
numerous postponements and when defense counsel failed to appear in
court despite due notice (p. 286, Record).
Galvan filed on April 24 a motion for reconsideration. He complained that the
accused were denied due process of law because they were not given a
chance to testify in their behalf. The motion was denied. The trial court in its
order of April 28, 1978 directed the clerk of court to forward the record of
the case to this Court.
Separate trial and decision in Juanito Lumague’s case.—As priorly noted,
Juanito was arrested in Barrio Ambangonan, on October 10, 1977 when the
prosecution had finished the presentation of its evidence against his brothers
Ponciano, Rolando and Mario. When arraigned on October 19, Juanito
pleaded not guilty. He was given a separate trial
At the hearing on June 28, 1978, when the medico-legal officer was
testifying for the second time in the separate trial for Juanito, Benjamin
Santos, Juanito’s counsel, interrupted the testimony of the medico-legal
officer and manifested that Juanito was withdrawing his plea of not guilty
and changing it to a plea of guilty. The doctor’s testimony was suspended.
Juanito was placed on the witness stand. He took his oath and was
interrogated as follows:
“Court to Juanito Lumague: Do you confirm and affirm that you are
changing your plea of not guilty to that plea of guilty?—A. Yes, sir. I was not
able to talk.
“Q. by Court: You were not able to talk because you were arrested, x x x.—
A. No, your Honor. The reason at that time I was asking but I was not able
to reason out that I was the one who committed the crime.

“Court: Why did you not tell the lawyer of your brother that you (are) the
only one to be presented by the defense lawyer?—A. I stated so, your
Honor.
“Court: Did anybody intimidate, coerce you or promise you of (any) leniency
for changing that plea of not guilty to that plea of guilty?—A. No, your
Honor.” (550-552)
The trial court then ordered the resumption of the presentation of evidence
against Juanito. The medico-legal officer was cross-examined by Juanito’s
counsel. Asuncion and Elma I. Regalado testified again. The prosecution
formally offered in evidence against Juanito the same Exhibits A to K which
it had already presented during the trial of Ponciano, Rolando and Mario
Lumague.
Juanito’s counsel did not present any evidence. On July 5, 1978, the trial
court rendered in Juanito’s case a decision similar to its previous decision. It
convicted him of murder, sentenced him to death and ordered him to pay
the same indemnity (p. 281, Record).
Ruling.—In this automatic review of the fear death sentences, counsel de
oficio contends that the trial court erred in not giving the four accused a
chance to present other witnesses and to testify in their behalf, in admitting
the extra-judicial confession of Mario Lumague, in giving credence to the
testimonies of the prosecution witnesses and in convicting the accused of
murder.
With respect to Juanito Lumague, who withdrew his plea of not guilty, who
was tried separately and whose guilt was also established by means of the
evidence presented against him, we find that the counsel’s contentions are
devoid of merit. Juanito’s guilt was proven beyond reasonable doubt. His
plea of guilty and the evidence introduced by the prosecution destroyed the
presumption of innocence in his favor.
There is conclusive evidence that he was the one who stabbed Regalado. In
doing so, he conspired with the other assailants of the victim, particularly
with the assailant who treacherously struck Regalado on the back with a
hoe. Even Juanito’s mother admitted that he took part in the assault (408-9,
413-4). And, of course, the fact that Juanito was a fugitive from justice for
several months is an indication of his guilt.
The trial court correctly held that the killing was murder qualified by
treachery and abuse of superiority and aggravated by cruelty. Hence, death
is the proper penalty. Juanito’s plea of guilty is not mitigating because it was
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 8
made after the prosecution had commenced the presentation of its
evidence.
With respect to the other three accused, Ponciano, Mario and Rolando
Lumague, who pleaded not guilty and who were tried ahead of Juanito,
there is merit in their contention that they were denied due process of law
because they were not given a chance to testify in their behalf and to
present additional evidence.
An accused has the constitutional right “to be heard by himself and counsel”
and the right “to testify as a witness in his own behalf”. The denial of such
rights is a denial of due process, as held in People vs. Santiago, 46 Phil. 734.
See People vs. Abuda, L-30009, February 27, 1971, 37 SCRA 789.
“Due process of law in a criminal prosecution consists of a law creating or
defining the offense, an impartial tribunal of competent jurisdiction,
accusation in due form, notice and opportunity to defend, trial according to
established procedure, and discharge unless found guilty” (16A C.J.S. 617).
The constitutional right of the accused to be heard in his defense is
inviolate. “No court of justice under our system of government has the
power to deprive him of that right.” (Abriol vs. Homeres, 84 Phil. 525, 534).
Fundamental fairness, which is the essence of due process, requires that the
three accused should be allowed to testify on their defenses and to present
additional evidence to prove their innocence.
WHEREFORE, we affirm the trial court’s separate decision dated July 5,
1978, sentencing Juanito Lumague to death. Its prior decision of April 18,
1978, sentencing to death Ponciano, Mario and Rolando, all surnamed
Lumague, is set aside. It is directed to receive the additional evidence of the
said accused, subject to the right of the prosecution to present rebuttal
evidence and the right of the accused to present surrebuttal evidence. The
evidence already presented subsists and should be taken into account in the
rendition of another decision. Costs de oficio.
SO ORDERED.
     Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr., Fernandez,
Guerrero, Melencio-Herrera, Plana and Escolin, JJ., concur.
     Fernando, C.J., takes no part insofar as the separate decision imposing
the death sentence on Juanito Lumague and concurs as to the setting aside
of the death sentence imposed on Ponciano, Mario and Rolando, all

surnamed Lumague. He likewise concurs with the observation of Justice
Abad Santos in his brief separate opinion.
     Abad Santos, J., separate opinion concurring in the result.
     De Castro, J., I concur with Justice Ericta’s observations.
     Ericta, J., separate dissenting and concurring opinion.
ABAD SANTOS, J., concurring—
I concur in the result and in doing so I wish to express some thoughts on
the case.
The Marikina police could not solve the murder of Antonio A. Regalado. The
Philippine Constabulary Criminal Investigation Service (CIS) had to intervene
despite the fact that the so-called friends of the deceased, namely: Roberto
Asuncion, Gerardo A. Ducha, Lorenzo Gravador and Rogelio Bautista were
present when the incident occurred. They did come out immediately to
denounce the crime to the police and of the four only Asuncion testified in
court; Ducha, Gravador and Bautista did not. If a person has friends like
them, who needs enemies?
Ducha’s sworn statements (Exhibits E and F) should be totally disregarded.
Since he did not testify and hence could not be cross-examined, they are
hearsay. They are prejudicial to the accused.
I would urge the trial court when it renders another decision in the case of
Ponciano, Mario and Rolando Lumague to view their social and economic
backgrounds in a different light. The decision appears to indicate that
because of their life-styles they have a proclivity to commit crime. Maybe it
is so. But it should be remembered that they did not choose to be poor and
for their poverty society must assume its share of the blame.
ERICTA, J., Concurring and Dissenting:
I do not agree that cruelty has been proven. There were five assailants and
the attack was concerted and almost simultaneous. If there were 36 wounds
in all, each defendant practically inflicted an average of seven wounds.
In the case of PP vs. Juan Jumauan alias Juancho Jumauan, 98 Phil. 1, the
lone defendant inflicted upon the deceased 13 wounds in all. But this Court
refused to appreciate the aggravating circumstance of cruelty, because there
was no showing that the defendant “deliberately and inhumanly increased
the suffering of the deceased.”
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 9
The test is whether the accused deliberately and sadistically augmented the
wrong by causing another wrong not necessary for its commission or
inhumanly increased the victim’s suffering or outraged or scoffed at his
person or corpse (People vs. Lacao, 60 SCRA 89).
There being no aggravating circumstance, the penalty to be imposed upon
Juanito Lumague should be reclusion perpetua.
I concur in the rest of the Decision.
Decision affirmed
Notes.—A plea of guilty when formally entered on arraignment, is sufficient
to sustain a conviction even for a capital offense without the introduction of
further
evidence, the requisite proofs having been supplied by the accused
themselves. (People vs. Garcia, 106 SCRA 314.)
A second plea of guilty, after the trial court entered a plea of not guilty
despite a previous plea of guilty, automatically revives an accused judicial
confession of guilt. (People vs. Matilla, 105 SCRA 768.)
There is no improvident plea of guilty where same was confirmed by
prosecution’s evidence. (People vs. Dumdum, Jr., 92 SCRA 198.)
An unqualified plea of guilty constitutes an admission of the material facts
alleged in the information, including the aggravating circumstances. (People
vs. Valera, 90 SCRA 400.)
It is now beyond dispute that due process cannot be satisfied in the absence
of that degree of objectivity on the part of a judge sufficient to reassure
litigants of his being fair and just. (Ignacio vs. Villaluz, 90 SCRA 16.)
Since what due process contemplates is freedom from arbitrariness and
what it requires is fairness or justice, the substance rather than the form
being paramount, an allegations based solely on the lack of opportunity to
be heard without notice does not per se merit unconditional approval
(Superior Concrete Products, Inc. vs. Workmen’s Compensation Commission,
82 SCRA 270.)
Due process of law implies that there must be a court or tribunal clothed
with power to bear and determined the matter before it, that jurisdiction
shall have been lawfully acquired, that the defendant shall have an
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 10
opportunity to be heard, and that judgment shall be rendered upon lawful
hearing. (Luzon-Surety Co., Inc. vs. Panaguiton, 84 SCRA 148.)
Lack of due process of law in the list of those recommended for summary
dismissal violates due process where administrative complaint was still
pending determination. (Macabuhay vs. Manuel, 87 SCRA 153.)
No denial of due process to accused as they were given by the trial court full
consideration of their rights. (People vs. Molleda, 86 SCRA 667.)
——o0o—— People vs. Lumague, Jr., 111 SCRA 515, No. L-53586 January
30, 1982
G.R. No. 137288. December 11, 2001.*
PEOPLE OF THE PHILIPPINES, appellee, vs. DANILO ABINO y
ADVINCULA, appellant.
Criminal Law; Rape; Qualified Rape; The law requires that the elements of
rape be proven first before the circumstance of relationship can be
appreciated to increase the penalty.—Insofar as it is relevant to the present
case, the law states that once the crime of rape is proven, the circumstance
of father-daughter relationship between the victim and the offender raises
the penalty to death. Such relationship, which must be both alleged in the
information and proven by the evidence, does not by itself operate to
convert carnal knowledge to rape. It bears emphasizing that the law
requires that the elements of rape be proven first before the circumstance of
relationship can be appreciated to increase the penalty.
Same; Same; Rape Committed Upon an Unconscious Woman; Elements.—In
the present case, the Information alleges that the crime of rape was
committed under paragraph number two of Article 335 of the Revised Penal
Code. Hence, before appellant can be convicted thereof, two elements must
concur: (1) he had carnal knowledge of complainant, Daniela; and (2) she
was unconscious when it happened.
Same; Same; Presumption of Innocence; Settled jurisprudence requires
proof beyond reasonable doubt, not mere possibility of the presence of all
the elements of the crime charged.—The circumstantial evidence in the
present case admits of the possibility that appellant could have had carnal
knowledge of complainant. But we cannot affirm his death sentence on the
basis alone of a mere possibility. Settled jurisprudence requires proof
beyond reasonable doubt, not mere possibility of the presence of all the
elements of the crime charged.
Same; Same; It is simply incredible that the pain that can reasonably be
expected from such insertion of a penis into the complainant’s young,
virginal vaginal canal would fail to wake her up. How could she have slept
through the entry of her father’s penis into her vagina and its exit therefrom,
from beginning to end, and awakened only after the alleged completion of
the crime?; A case must rest on evidence, not on mere possibility.—The
prosecution claims that the painful vagina and the lacerated hymen are
circumstantial evidence of carnal knowledge that occurred while Daniela was
asleep on the night of April 6, 1996. If this were so, it follows that the
purported penile penetration must have been deep enough to reach and
lacerate her hymen at the 3 and the 9 o’clock positions. It is simply
incredible that the pain that can reasonably be expected from such insertion
of a penis into her young, virginal vaginal canal would fail to wake her up.
How could she have slept through the entry of her father’s penis into her
vagina and its exit therefrom—from beginning to end—and awakened only
after the alleged completion of the crime, as the prosecution would have us
believe? It may have been possible if she had been drugged, but a case
must rest on evidence, not on mere possibility.
Same; Same; Right to be Informed; Where the accused was charged and
tried on an Information alleging rape of a woman who was “asleep and
unconscious,” convicting him of rape done by intimidation would violate his
constitutional right to be informed of the nature and cause of the accusation
against him.—Neither can we, in these proceedings, convict appellant of
rape committed through intimidation as a result of his moral ascendancy,
even if it were proven beyond reasonable doubt. He was charged and tried
on an Information alleging rape of a woman who was “asleep and
unconscious.” Convicting him of rape done by intimidation would violate his
constitutional right “to be informed of the nature and cause of the
accusation against him.” People vs. Abino, 372 SCRA 50, G.R. No. 137288
December 11, 2001
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Calamba,
Laguna, Br. 34.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 11
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Public Attorney’s Office for accused-appellant.
PANGANIBAN, J.:
Rape, particularly incestuous rape, is reprehensible and abominable.
However, to convict the accused and to sentence him to death requires
proof beyond reasonable doubt of the elements of the crime and the
qualifying circumstances specifically alleged in the information. Conviction
always rests on the strength of the evidence of the prosecution, never on
the weakness or the absence of that of the defense.
The Case
For automatic review by this Court is the Decision1 dated January 20, 1999,
promulgated by the Regional Trial Court (RTC) of Calamba, Laguna (Branch
34) in Criminal Case No. 5793-98-C, finding Danilo Abino y Advincula guilty
of rape beyond reasonable doubt. We quote the decretal portion of the
Decision:
“ACCORDINGLY, this Court finds accused Danilo Abino y Advincula GUILTY
beyond reasonable doubt of the crime of rape as defined and penalized
under Article 335 of the Revised Penal Code, as amended, and hereby
sentences him to suffer the penalty of death.
“Accused is further directed to indemnify the offended party, Daniela Abino,
the sum of FIFTY THOUSAND (P50,000.00) PESOS as and for moral
damages.
“With costs against the accused.”2
The Information3 against appellant reads as follows:
“That on or about April 6, 1996, in the Municipality of Los Baños, Province of
Laguna and within the jurisdiction of this Honorable Court, the above-named
accused did then and there have carnal knowledge of his daughter, the
minor DANIELA ABINO y MERCADO, who was then asleep and unconscious,
against her will and consent, to her damage and prejudice.”
With the assistance of his counsel,4 appellant pleaded not guilty when
arraigned on July 10, 1998.5 In due course, the latter was tried and
convicted of qualified rape.
The Facts
Version of the Prosecution
The Office of the Solicitor General summarized the evidence for the
prosecution in this wise:6
“1. Fourteen-year old Daniela Abino lived with her father, appellant Danilo
Abino, at Agua Santa, an old resort located in Bambang, Los Baños, Laguna.
Appellant was a member of the Los Baños task force on market security,
assigned to night shift duty at the market. Daniela’s mother no longer lived
with them as she had another family.
“2. On the evening of April 6, 1996, appellant came home drunk. He took a
bath and told Daniela to prepare his things for the market. Daniela obeyed
him and went to the second floor of their house to fix her father’s things.
Appellant followed Daniela clad only in his underwear with a towel wrapped
around his waist. He embraced Daniela and pressed his penis against her
buttocks. Daniela pulled herself away from appellant and went downstairs.
“3. When appellant went down, Daniela told him that she was no longer
going with him to his office. Appellant said nothing and left for work. Daniela
stayed at the first floor of their house until she decided to go to bed and
went upstairs.
“4. Daniela was fast asleep in her bed when she felt somebody on top of her
and kissing her. She opened her eyes and saw appellant who was naked.
Daniela found herself naked too as she no longer had her panty and shorts
on. When Daniela woke up and moved, appellant stood up, dressed himself
and then left. Daniela felt intense pain in her vagina and cried.
“5. Daniela put on her panty and tried to sleep, but sleep escaped her and
she kept on crying. The following morning, she prepared herself for school
and cooked rice. Daniela, however, did not go to school that day and stayed
at home.
“6. Daniela did not immediately tell anybody about what appellant did to
her. She stayed with him for about seventeen months more or until
September 1997. However, Daniela eventually decided to run away from
home because she was afraid that appellant might molest and hurt her
again.
“7. Daniela stayed in a canteen near ‘Star City’ in Manila. After her stint at
the canteen, Daniela worked for one Mando Parr in Pasay City. She,
however, left his employ. In December of 1997, Daniela found herself in
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 12
Baguio City where she met a social worker who placed her in the custody of
the Department of Social Welfare and Development.
“8. On December 17, 1997, Daniela was brought by one Aileen Edades of
the Commission on Human Rights to the City Health Office in San Pablo City.
There she was examined by Dr. Azucena I. Bandoy, the Assistant City Health
Officer of San Pablo City.
“9. Dr. Bandoy found that Daniela’s sex organ bore a ‘3rd and 9 o’clock old
healed laceration scar’ and that the scar was caused by the insertion of a
foreign body, specifically, ‘the penis or a male organ,’ into Daniela’s vagina.
According to Dr. Bandoy, the laceration might have been inflicted ‘a year
ago’.”
Version of the Defense
On the other hand, the Public Attorney’s Office presents appellant’s version
of the incident simply as follows:7
“Danilo Abiño y Advincula testified that the allegation in the complaint is not
true. The only reason why the complainant filed the rape charge against him
is that he is a very strict father, that’s the reason why the complainant is
angry with him.”
Ruling of the Trial Court
The court a quo found complainant’s testimony “strong, credible and
competent.” It “could not fathom any justifiable reason why she at so young
an age would accuse her own father and portray the latter as a beast who
deflowered her if the same be not true.” Finding carnal knowledge to have
taken place between them, it sentenced appellant to death.
Hence, this automatic review before us.8
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged
errors:9
“The lower court erred in convicting the accused based on the incredible and
inconsistent testimony of Daniela Abino.
“The lower court gravely erred in convicting the accused despite failure of
the prosecution to prove his guilt beyond reasonable doubt.”
Basically, the assigned errors boil down to the sole issue of whether the
prosecution evidence proves appellant’s guilt beyond reasonable doubt of
the crime charged.
The Court’s Ruling
The appeal is meritorious.
Main Issue:
Sufficiency of Evidence
At the time of the alleged commission of the acts stated in the Information,
the Revised Penal Code, as amended by Section 11 of RA 7659, specifies
how rape may be committed, as follows:
“Art. 335. When and how rape is committed.—Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
“The crime of rape shall be punished by reclusion perpetua.
“Whenever the crime of rape is committed with the use of a deadly weapon
or by two or more persons, the penalty shall be reclusion perpetua to death.
“When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
“When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.
“When by reason or on the occasion of the rape, a homicide is committed,
the penalty shall be death.
“The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law-spouse of the parent of the
victim.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 13
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of
the children of other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines
or the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation.”
Insofar as it is relevant to the present case, the law states that once the
crime of rape is proven, the circumstance of father-daughter relationship
between the victim and the offender raises the penalty to death. Such
relationship, which must be both alleged in the information and proven by
the evidence, does not by itself operate to convert carnal knowledge to
rape. It bears emphasizing that the law requires that the elements of rape
be proven first before the circumstance of relationship can be appreciated to
increase the penalty.
In the present case, the Information alleges that the crime of rape was
committed under paragraph number two of Article 335 of the Revised Penal
Code. Hence, before appellant can be convicted thereof, two elements must
concur: (1) he had carnal knowledge of complainant, Daniela; and (2) she
was unconscious when it happened.
The prosecution sought to prove the element of unconsciousness through
the testimony of Daniela that on the night of April 6, 1996, she was asleep.
As to the element of carnal knowledge, it presented only the following
circumstantial evidence:
1. On the night of April 6, 1996, Daniela woke up to find her father on top of
her, but he promptly got off when she “opened her eyes.”
2. Thereafter she felt pain in her vagina.
3. After seventeen months, she left home and wandered from place to place
for several more months, until she met a social worker in Baguio.
4. She was then examined and found to have old healed hymenal
lacerations at the 3 and the 9 o’clock positions and a yellowish white
discharge, which indicated infection due to coitus several times with an
infected male.10
An examination of Daniela’s entire testimony compels us to reverse the
RTC’s hasty conclusion of rape based only on its circumstantial finding of
carnal knowledge between appellant and Daniela. Contrary to the court a
quo’s pronouncement, Daniela was not convincing on very material points.
Q Tell us on the night of April 6, 1996 where were you then?
A I was in our house at Agua Santa.
Q Where is this Agua Santa where you said you were then?
A In Bambang sir.
FISCAL:
Q: Los Baños, Laguna?
A Yes, sir.
Q Were you alone in your house or did you have companions at that time?
A None, sir.
Q What time did you go to sleep that night of April 6, 1996?
A I do not know the time sir.
Q When asked if you ha[d] any companions on that night of April 6, 1996
you said you ha[d] no companions, tell us why were you alone on that night
in your house?
A Becaus[e] my father left.
Q How about your mother, do you have any mother?
A Yes, sir.
Q Where was she on that night of April 6, 1996?
A She already has another family.
Q What time did you wake up that night of April 6, 1996?
A I do not know.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 14

Q Were you able to continuously sleep the whole night of April 6, 1996? A Tax collector sir.

A No, sir. Q After you told your father that you will not go with him anymore what did
he tell you?
Q Why?
A Nothing, he just left.
A Because that night, my father who was dr[u]nk took his bath and after
that he told me to fix his things in going to the office. So I went upstairs to Q On your part, what did you do after your father left?
fix his things and he followed me.
A I just stayed in the first floor of our house, up to x x x nigh[t] time and
ATTY. PADERAYON: Before the next question, we object to the answer, your when x x x night time came I went to sleep.
honor, considering that that is not responsive to the question.
FISCAL:
FISCAL:
Q Did your father come back that night?
Q Where did he follow you?
A Yes, sir.
A To the second floor of our house.
ATTY. PADERAYON: Leading, your honor.
Q After your father followed you [o]n the second floor of your house, what
did he do? if any? FISCAL:

A He told me it was cold. Q Why did you know that your father went back that night?

Q After he embraced you, what happened? A I saw him that night.

A “Yong ari niya idinikit sa puwet ko.”
Q After he did that to you, what did he do next?
A “Umalis ako sa harap niya at bumaba [ako] ng hagdan.” (Witn ess is
crying)
Q After you said you left and went down, what did your father do?
Q At what time did you see him and what was he doing at the time you saw
him?
A When I saw him that night I don’t know what time was that[.] I returned
to sleep and I was awakened and felt that someone was on my top.
Q Were you able to recognize who was that somebody who was on your
top?

A He dressed up and when he was already on the first floor, I told him that I A Yes, sir.
will not go with him anymore [to] the office.
Q Who?
Q Why? Did he ask you to go with him [to] the office?
A My father sir.
A Yes, sir, we are always together in his office and I am sleeping in his
office. Q What was your father doing at the time you said he was on top of you?

Q By the way, where [is] this office where you said your father is working? A When I opened my eyes he left me.

A Near the market sir. Q Can you tell us what your father was wearing when you said he was on
top of you?
Q What is his work in the market?
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 15
A Pants and white t-shirt and [he] was wearing a vest.
Q And when your father you said left what did you notice on your self?
A My private part was painful.
FISCAL:
Q Aside from the pain that you felt what else did you [notice] from your
private part?
A “Mahapdi” whenever I am urinating.
Q When you said you felt pain after your father left, what were you
wearing?
A I was wearing my uniform.
Q At the time your father left at the time you saw him, what were you
wearing?
A I was wearing skirt and shorts.
Q So when you said you felt pain after you said your father was on top of
[you] and then you left, what did you do?
A I noticed my panty was yellowish and was hot “mainit ng konti”.
Q And when you noticed these things, what did you do?
A I just cried.
Q Where was your father at the time you said you were crying?
A He returned to the market.
Q Finally, what time did you wake up that morning?
A I was not able to sleep then.
Q The following morning, what did you do?
A I cooked rice and prepared myself [for] school.
Q Did you go to school the following day?
ANo, sir.
FISCAL:
Q: Why?
A I felt lazy.
Q What did you do that day of April 7 when you said you did not go tschool?
A Nothing sir. I just stayed in the house.
Then, on redirect examination, she testified:
Q: Now you said that you woke up, your father was on top of you, what was
he doing at that time when he was on your top?
A: He was kissing me, sir.
Q: And aside from kissing, what else x x x did [he do] to you?
A: Nothing more, sir.”12
In attempting to clarify and consolidate its case against appellant, the
prosecution succeeded only in destroying the testimony of its star witness.
In the process, it further strengthened the premise that, other than lying on
top of Daniela and kissing her, appellant did “nothing more” on April 6,
1996.
The circumstantial evidence in the present case admits of the possibility that
appellant could have had carnal knowledge of complainant. But we cannot
affirm his death sentence on the basis alone of a mere possibility. Settled
jurisprudence13 requires proof beyond reasonable doubt, not mere
possibility of the presence of all the elements of the crime charged.
Here, the prosecution’s contention that the element of carnal knowledge
concurred with the element of unconsciousness is neither believable nor
supported by evidence. There is no evidence to show that Daniela was
knocked out, drugged, intoxicated, tired and worn out or in any similar
condition that would induce such a heavy sleep. There was therefore
nothing that would account for her insensitivity to appellant’s supposed act
of inserting his penis into her vagina, if this really happened on April 6,
1996.
The prosecution claims that the painful vagina and the lacerated hymen are
circumstantial evidence of carnal knowledge that occurred while Daniela was
asleep on the night of April 6, 1996. If this were so, it follows that the
purported penile penetration must have been deep enough to reach and
lacerate her hymen at the 3 and the 9 o’clock positions. It is simply
incredible that the pain that can reasonably be expected from such insertion
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 16
of a penis into her young, virginal vaginal canal would fail to wake her up.
How could she have slept through the entry of her father’s penis into her
vagina and its exit therefrom—from beginning to end—and awakened only
after the alleged completion of the crime, as the prosecution would have us
believe? It may have been possible if she had been drugged, but a case
must rest on evidence, not on mere possibility.
“It is a legal truism that evidence, to be believed, must not only proceed
from the mouth of a credible witness, but must be credible in itself.”14 “We
have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience and whatever is repugnant to these
belongs to the miraculous and is outside of judicial cognizance.”15 In the
present case, the circumstances surrounding the prosecution’s allegations
are not in accord with human experience. “The proof against the accused
must overcome not only “the test of reason and logic, but above all, that of
experience.”16 It is more reasonable to believe, that, as Daniela herself
testified, appellant kissed her on the night of April 6, 1996—but did nothing
more; or, as can reasonably be inferred from the records, he had carnal
knowledge of her, but she was conscious and willing.
Doctrinally, where “the inculpatory facts and circumstances are capable of
two or more explanations one of which is consistent with the innocence of
the accused and the other consistent with his guilt, then the evidence does
not fulfill the test of moral certainty and is not sufficient to support a
conviction.”17
It is claimed that appellant had carnal knowledge of his daughter on a day
other than on April 6, 1996, and under some circumstance other than while
she was asleep. Aside from speculation and conjecture, this argument finds
no factual support. And even if true, such circumstance cannot convict him
of the rape charged in the Information.
Neither can we, in these proceedings, convict appellant of rape committed
through intimidation as a result of his moral ascendancy, even if it were
proven beyond reasonable doubt. He was charged and tried on an
Information alleging rape of a woman who was “asleep and unconscious.”
Convicting him of rape done by intimidation would violate his constitutional
right “to be informed of the nature and cause of the accusation against
him.”18
Rape, particularly incestuous rape, is reprehensible and abominable.
However, to convict the accused and to sentence him to death requires that
(1) the prosecution’s evidence for the elements of the crime and (2) the
qualifying circumstances specifically alleged in the Information must pass
the test of moral certainty. Absent the satisfaction of this stringent
requirement, we must uphold appellant’s constitutional right to be presumed
innocent.
WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby
REVERSED and SET ASIDE. Appellant Danilo Abino y Advincula is
ACQUITTED on reasonable doubt. The director of the Bureau of Corrections
is ordered to cause the immediate release of appellant, unless the latter is
being lawfully held for another cause; and to inform the Court of the date of
appellant’s release, or the reasons for his continued confinement, within ten
days from notice. No pronouncement as to costs.
SO ORDERED.
     Davide, Jr. (C.J.), Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Quisumbing, Pardo, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez and
Carpio, JJ., concur.
     Puno and Buena, JJ., Abroad on official business.
Appeal granted, judgment reversed and set aside. Accused-appellant
acquitted.
Notes.—Where there is reasonable doubt as to the guilt of the accused, he
must be acquitted even though his innocence may be doubted since the
constitutional right to be presumed innocent until proven guilty can be
overthrown only by proof beyond reasonable doubt. (Pecho vs. People, 262
SCRA 518 [1996])
The father-daughter relationship in rape cases has been treated by Congress
in the nature of a special circumstance which makes the imposition of the
death penalty mandatory. (People vs. Manhuyod, Jr., 290 SCRA 257 [1998])
No woman, especially of tender age, would concoct a story of defloration,
allow an examination of her private parts, and thereafter pervert herself by
being subjected to a public trial if she was not motivated solely by the desire
to have the culprit apprehended and punished. (People vs. Taneo, 284 SCRA
251 [1998])
——o People vs. Abino, 372 SCRA 50, G.R. No. 137288 December 11, 2001
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 17
G.R. No. 116736. July 24, 1997.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN
ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE,
accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y
RIVERA, accused-appellants.
Criminal Law; Witnesses; Unless the trial judge plainly overlooked certain
facts of substance and value which, if considered, might affect the result of
the case, his assessment of credibility must be respected.—Because the trial
court had the opportunity to observe the witnesses’ demeanor and
deportment on the stand as they rendered their testimonies, its evaluation
of the credibility of witnesses is entitled to the highest respect. Therefore,
unless the trial judge plainly overlooked certain facts of substance and value
which, if considered, might affect the result of the case, his assessment of
credibility must be respected.
Same; Murder; Homicide; Aggravating Circumstances; Abuse of Superior
Strength; Abuse of superior strength requires deliberate intent on the part of
the accused to take advantage of such superiority.—Although treachery,
evident premeditation and abuse of superior strength were alleged in the
information, the trial court found the presence only of abuse of superior
strength. We disagree with the trial court’s finding. Abuse of superior
strength requires deliberate intent on the part of the accused to take
advantage of such superiority. It must be shown that the accused purposely
used excessive force that was manifestly out of proportion to the means
available to the victim’s defense. In this light, it is necessary to evaluate not
only the physical condition and weapon of the protagonists but also the
various incidents of the event.
Same; Criminal Liability; The essential requisites for the application of Article
4, par. 1 of the Revised Penal Code are that: (a) the intended act is
felonious; (b) the resulting act is likewise a felony; and (c) the unintended
albeit graver wrong was primarily caused by the actor’s wrongful acts.—
Article 4, par. 1, of the Revised Penal Code states that criminal liability shall
be incurred by “any person committing a felony (delito) although the
wrongful act done be different from that which he intended.” The essential
requisites for the application of this provision are that (a) the intended act is
felonious; (b) the resulting act is likewise a felony; and (c) the unintended
albeit graver wrong was primarily caused by the actor’s wrongful acts.
Same; Same; Homicide; Although an accused may have been unaware that
the victim was still alive when he assisted another in concealing the body of
the victim by throwing it into the well, he is still liable for the direct and
natural consequence of the felonious act, that of homicide, where it was
shown that the victim died subsequently of drowning.—In assisting
Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant
Garcia was committing a felony. The offense was that of concealing the
body of the crime to prevent its discovery, i.e., that of being an accessory in
the crime of homicide. Although Appellant Garcia may have been unaware
that the victim was still alive when he assisted Ortega in throwing the body
into the well, he is still liable for the direct and natural consequence of his
felonious act, even if the resulting offense is worse than that intended. True,
Appellant Garcia merely assisted in concealing the body of the victim. But
the autopsy conducted by the NBI medico-legal officer showed that the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 18
victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was medically
demonstrated by the muddy particles found in the victim’s airway, lungs and
stomach.
Same; Constitutional Law; Criminal Procedure; Right to be Informed; The
hornbook doctrine in our jurisdiction is that an accused cannot be convicted
of an offense, unless it is clearly charged in the complaint or information.—
The Information accused Appellant Garcia (and Appellant Ortega) of
“attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon
on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA.”
The prosecution’s evidence itself shows that Garcia had nothing to do with
the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and
the resulting drowning of Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an offense, unless it is
clearly charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against him.
To convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.
Same; Same; Same; Same; A person cannot be convicted of homicide
through drowning in an information that charged murder by means of
stabbing.—By parity of reasoning, Appellant Garcia cannot be convicted of
homicide through drowning in an information that charges murder by means
of stabbing.
Same; Accessories; Exempting Circumstances; A person who assists a
brother-in-law in concealing the body of a crime in order to prevent its
discovery can not be convicted as an accessory.—Although the prosecution
was able to prove that Appellant Garcia assisted in “concealing x x x the
body of the crime, x x x in order to prevent its discovery,” he can neither be
convicted as an accessory after the fact defined under Article 19, par. 2, of
the Revised Penal Code. The records show that Appellant Garcia is a
brother-in-law of Appellant Ortega, the latter’s sister, Maritess, being his
wife. Such relationship exempts Appellant Garcia from criminal liability as
provided by Article 20 of the Revised Penal Code: “ART. 20. Accessories who
are exempt from criminal liability.—The penalties prescribed for accessories
shall not be imposed upon those who are such with respect to their spouses,
ascendants, descendants, legitimate, natural, and adopted brothers and
sisters, or relatives by affinity within the same degrees with the single
exception of accessories falling within the provisions of paragraph 1 of the
next preceding article.”
Same; Homicide; Damages; The Court can give credence only to those
expenses that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim; Civil indemnity requires
no proof other than the fact of death and the accused’s responsibility
therefor.—The award of actual damages should be reduced to P31,790.00
from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. Of the
expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. However, in line with
current jurisprudence, Appellant Ortega shall also indemnify the heirs of the
deceased in the sum of P50,000.00.
Indemnity requires no proof other than the fact of death and appellant’s
responsibility therefor. People vs. Ortega, Jr., 276 SCRA 166, G.R. No.
116736 July 24, 1997
APPEAL from a decision of the Regional Trial Court of Valenzuela, Metro
Manila, Br. 171.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Evaristo P. Velicaria for accused-appellant.
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can
be held liable as a principal, not simply as an accessory, where it is proven
that the said victim was actually alive but subsequently died as a direct
result of such concealment and burial. Nonetheless, in the present case,
Appellant Garcia cannot be held liable as a principal because the prosecution
failed to allege such death through drowning in the Information. Neither
may said appellant be held liable as an accessory due to his relationship with
the principal killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision,1 dated February 9, 1994
written by Judge Adriano R. Osorio,2 finding them guilty of murder.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 19
Appellants were charged by State Prosecutor Bernardo S. Razon in an
Information3 dated October 19, 1992, as follows:
“That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, without any
justifiable cause, with treachery and evident premeditation and with abuse
of superior strenght (sic) and with deliberate intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and stab repeatedly
with a pointed weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical
injuries which directly caused his death.”
During arraignment, Appellants Ortega and Garcia, assisted by counsel de
oficio,4 pleaded not guilty to the charge.5 Accused “John Doe” was then at
large.6 After trial in due course, the court a quo promulgated the questioned
Decision. The dispositive portion reads:7
“WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel
Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the
Court hereby sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of
P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and
death indemnity of P50,000.00.”
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo
P. Velicaria8 who took over from the Public Attorney’s Office as counsel for
the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses as
follows:9
“Diosdado Quitlong substantially testified that on October 15, 1992 at about
5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto,
Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro Manila. That while they were drinking,
accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk
arrived and joined them. That victim Andre Mar Masangkay answered the
call of nature and went to the back portion of the house. That accused
Benjamin Ortega, Jr. followed him and later they [referring to the
participants in the drinking session] heard the victim Andre Mar shouted,
‘Don’t, help me!’ (Huwag, tulungan ninyo ako!) That he and Ariel Caranto
ran towards the back portion of the house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal
with his face up and stabbing the latter with a long bladed weapon. That
Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where
they were having the drinking session [for the latter] to pacify his brother
Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and
together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar
Masangkay from the canal and brought Andre Mar to the well and dropped
the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and
Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet
in length and 11 to 12 inches in weight (sic) to the body of Andre Mar
Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not
to tell anybody of what he saw. That he answered in the affirmative and he
was allowed to go home. That his house is about 200 meters from Romeo
Ortega’s house. That upon reaching home, his conscience bothered him and
he told his mother what he witnessed. That he went to the residence of Col.
Leonardo Orig and reported the matter. That Col. Orig accompanied him to
the Valenzuela Police Station and some police officers went with them to the
crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were
apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he
was presented as witness in this case. That he narrated the incident to his
mother on the night he witnessed the killing on October 15, 1992. That on
October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre
Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having
[a] drinking spree and he joined them. That accused Benjamin Ortega, Jr.
and Manuel Garcia were not yet in the place. That the stabbing happened
between 12:00 midnight and 12:30 a.m. That they drank gin with finger
foods such as pork and shell fish. That he met the victim Andre Mar
Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and
Manuel Garcia joined them at about 11:00 p.m. That there was no
altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand
and Andre Mar Masangkay, during the drinking session. That at about 12:30
a.m. Andre Mar Masangkay answered the call of nature and went to the
back portion of the house. That he cannot see Andre Mar Masangkay from
the place they were having the drinking session. That he did not see what
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 20
happened to Andre Mar Masangkay. That he only heard Masangkay asking
for help. That accused Manuel Garcia was still in the drinking session when
he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and
Manuel Garcia are his friends and neighbors. That when he heard Andre Mar
Masangkay was asking for help, he and Ariel Caranto ran to the back portion
of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay
and stabbing the latter. That Andre Mar Masangkay was lying down with his
back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That
he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo
Ortega to pacify his brother Benjamin, Jr. That he did not do anything to
separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre
Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked
permission from Andre Mar Masangkay when she left between 8:00 and
9:00 p.m. That there was no trouble that occurred during the drinking
session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado
Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00
in the morning, he was summoned by Diosdado Quitlong and reported to
him the stabbing incident that occurred at Daangbakal near the subdivision
he is living. That he relayed the information to the Valenzuela Police Station
and a police team under police officer Param accompanied them to the
place. That he asked the police officers to verify if there is a body of person
inside the well. That the well was covered with stones and he asked the
police officers to seek the help of theneighbors (sic) to remove the stones
inside the well. That after the stones were removed, the body of the victim
was found inside the well. That the lifeless body was pulled out from the
well. That the body has several stab wounds. That he came to know the
victim as Andre Mar Masangkay. That two men were arrested by the police
officers.
On cross-examination, he said that he saw the body when taken out of the
well with several stab wounds. That Diosdado Quitlong told him that he was
drinking with the victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was answering the
call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October
16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway.
That he prepared the autopsy report and the sketch of human head and
body indicating the location of the stab wounds. That the cause of death is
multiple stab wounds, contributory, [a]sphyxia by submersion in water. That
there were 13 stab wounds, 8 of which were on the frontal part of the body,
2 at the back and there were contused abrasions around the neck and on
the left arm. There was stab wound at the left side of the neck. That the
contused abrasion could be produced by cord or wire or rope. That there is
(an) incised wound on the left forearm. That the stab wounds which were
backward downward of the body involved the lungs. That the victim was in
front of the assailant. That the stab wound on the upper left shoulder was
caused when the assailant was in front of the victim. That the assailant was
in front of the victim when the stab wound near the upper left armpit was
inflicted as well as the stab wound on the left chest wall. That the stab
wound on the back left side of the body and the stab wound on the back
right portion of the body may be produced when the assailant was at the
back of the victim. That the assailant was in front of the victim when the
stab wound[s] on the left elbow and left arm were inflicted. That the large
airway is filled with muddy particles indicating that the victim was alive when
the victim inhaled the muddy particles. The heart is filled with multiple
hemorrhage, loss of blood or decreased of blood. The lungs is filled with
water or muddy particles. The brain is pale due to loss of blood. The
stomach is one half filled with muddy particles which could [have been]
taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of
the victim. That he cannot tell if the assailant or the victim were standing.
That it is possible that the stab wounds was (sic) inflicted when both
[referring to participants] were standing or the victim was lying down and
the assailant was on top. That he cannot tell the number of the assailants.”
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven
o’clock in the morning, went home, changed his clothes and went to
work.10 After office hours, he and Benjamin Ortega, Jr. passed by the
canteen at their place of work. After drinking beer, they left at eight o’clock
in the evening and headed home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join
their own drinking spree. Thereupon, Appellant Garcia’s wife came and
asked him to go home because their daughter was still sick. To alleviate his
daughter’s illness, he fetched his mother-in-law who performed a ritual
called “tawas.” After the ritual, he remained at home and attended to his
sick daughter. He then fell asleep but was awakened by police officers at six
o’clock in the morning of the following day.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 21
Maritess Garcia substantially corroborated the testimony of her husband.
She however added two other participants in the drinking session aside from
Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a
Mang Serafin and Boyet Santos.11
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of
Appellant Manuel Garcia.12 According to him, between eleven and twelve
o’clock in the evening, Masangkay left the drinking session. Thirty (30)
minutes after Masangkay left, he also left the drinking place to urinate.13 He
went behind the house where he saw Masangkay peeping through the room
of his sister Raquel. He ignored Masangkay and continued urinating.14 After
he was through, Masangkay approached him and asked where his sister
was. He answered that he did not know. Without warning, Masangkay
allegedly boxed him in the mouth, an attack that induced bleeding and
caused him to fall on his back. When he was about to stand up, Masangkay
drew a knife and stabbed him, hitting him on the left arm, thereby
immobilizing him. Masangkay then gripped his neck with his left arm and
threatened to kill him. Unable to move, Ortega shouted for help. Quitlong
came and, to avoid being stabbed, grabbed Masangkay’s right hand which
was holding the knife. Quitlong was able to wrest the knife from Masangkay
and, with it, he stabbed Masangkay ten (10) times successively, in the left
chest and in the middle of the stomach. When the stabbing started, Ortega
moved to the left side of Masangkay to avoid being hit.15 Quitlong chased
Masangkay who ran towards the direction of the well. Thereafter, Ortega
went home and treated his injured left armpit and lips. Then, he slept.
When he woke up at six o’clock the following morning, he saw police officers
in front of his house. Taking him with them, the lawmen proceeded to the
well. From the railroad tracks where he was asked to sit, he saw the police
officers lift the body of a dead person from the well. He came to know the
identity of the dead person only after the body was taken to the police
headquarters.16
The Trial Court’s Discussion
The trial court explained its basis for appellants’ conviction as follows:17
“The Court is convinced that the concerted acts of accused Benjamin Ortega,
Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and
dumping the victim Andre Mar Masangkay who was still alive and breathing
inside the deep well filled with water, head first and threw big stones/rocks
inside the well to cover the victim is a clear indication of the community of
design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed
victim Andre Mar Masangkay was in no position to flee and/or defend
himself against the three malefactors. Conspiracy and the taking advantage
of superior strength were in attendance. The crime committed by the
accused is Murder.
Concert of action at the moment of consummating the crime and the form
and manner in which assistance is rendered to the person inflicting the fatal
wound may determine complicity where it would not otherwise be evidence
[People vs. Yu, 80 SCRA 382 (1977)].
Every person criminally liable for a felony is also civilly liable. Accused (m)ust
reimburse the heirs of victim Andre Mar Masangkay the amount of
P35,000.00 for the funeral expenses of the deceased.”
The Issues
In their ten-page brief, appellants fault the trial court with the following:18
“I. The trial court erred in holding that there is conspiracy on the basis of
the prosecution’s evidence that at the time both accused and one Romeo
Ortega lifted the body of Andrew Masangkay from where he succumbed due
to stab wounds and brought and drop said body of Andrew Masangkay to
the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay was
still alive at the time his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting
the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega, Jr. is
guilty only of homicide alone.”
On the basis of the records and the arguments raised by the appellants and
the People, we believe that the question to be resolved could be simplified
thus: What are the criminal liabilities, if any, of Appellants Ortega and
Garcia?
The Court’s Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of
homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 22
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of the
crime and positively identified appellants as the perpetrators. The witnesses
for the defense, on the other hand, attempted to prove denial and alibi. As
to which of the two contending versions speaks the truth primarily rests on a
critical evaluation of the credibility of the witnesses and their stories. In this
regard, the trial court held:19
“The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
behavior and demeanor on the witness stand and is convinced that the story
of the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x”
Because the trial court had the opportunity to observe the witnesses’
demeanor and deportment on the stand as they rendered their testimonies,
its evaluation of the credibility of witnesses is entitled to the highest respect.
Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected.20
In the instant case, we have meticulously scoured the records and found no
reason to reverse the trial court’s assessment of the credibility of the
witnesses and their testimonies21 insofar as Appellant Ortega is concerned.
The narration of Eyewitness Diosdado Quitlong appears to be spontaneous
and consistent. It is straightforward, detailed, vivid and logical. Thus, it
clearly deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the
unbelievable. Appellant Ortega claimed that after he was able to free himself
from Masangkay’s grip, he went home, treated his injuries and slept.22 This
is not the ordinary reaction of a person assaulted. If Ortega’s version of the
assault was true, he should have immediately reported the matter to the
police authorities, if only out of gratitude to Quitlong who came to his
rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong.23 The natural tendency of a person
under attack is to defend himself and not to persist in choking a defenseless
third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial court’s finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of
such superiority. It must be shown that the accused purposely used
excessive force that was manifestly out of proportion to the means available
to the victim’s defense.24 In this light, it is necessary to evaluate not only
the physical condition and weapon of the protagonists but also the various
incidents of the event.25
In his testimony, Witness Dominador Quitlong mentioned nothing about
Appellant Ortega’s availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows:26
“ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking
spree with Andrew Masangkay and where you witnessed a stabbing
incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were
drinking in the house of Mr. Benjamin Ortega, Sr., because the house of
Benjamin Ortega, Sr. and the house of his son Benjamin Ortega, Jr. are near
each other.
x x x     x x x     x x x
Q Mr. Witness, who were the companions of said persons, Benjamin Ortega,
Jr., Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 23
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr.
arrived drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking . . .
(interrupted by Atty. Altuna)
Q Who is that ‘we’?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo
Ortega, Roberto San Andres, myself and Andrew Masangkay. Andrew
Masangkay answer to a call of nature and went to the back portion of the
house, and Benjamin Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said ‘Huwag, tulungan
n’yo ako.’
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of
nature and after you heard ‘huwag, tulungan n’yo ako’ coming from the
mouth of the late Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and
he was stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was
done telling us the particular position of the late Andrew Masangkay and
how Benjamin Ortega, Jr. proceeded with the stabbing against the late
victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then
Benjamin Ortega, Jr. was ‘nakakabayo’ and with his right hand with closed
fist holding the weapon, he was thrusting this weapon on the body of the
victim, he was making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.”
It should be noted that Victim Masangkay was a six-footer, whereas
Appellant Ortega, Jr. was only five feet and five inches tall.27 There was no
testimony as to how the attack was initiated. The accused and the victim
were already grappling when Quitlong arrived. Nothing in the foregoing
testimony and circumstances can be interpreted as abuse of superior
strength. Hence, Ortega is liable only for homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial court “is based on
mere assumption and conjecture x x x.”28 Allegedly, the medico-legal
finding that the large airway was “filled with muddy particles indicating that
the victim was alive when the victim inhaled the muddy particles” did not
necessarily mean that such muddy particles entered the body of the victim
while he was still alive. The Sinumpaang Salaysay of Quitlong stated,
“Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin
Ortega, Jr.” Thus, the prosecution evidence shows Masangkay was already
“dead” when he was lifted and dumped into the well. Hence, Garcia could be
held liable only as an accessory.29
We do not agree with the above contention. Article 4, par. 1, of the Revised
Penal Code states that criminal liability shall be incurred by “any person
committing a felony (delito) although the wrongful act done be different
from that which he intended.” The essential requisites for the application of
this provision are that (a) the intended act is felonious; (b) the resulting act
is likewise a felony; and (c) the unintended albeit graver wrong was
primarily caused by the actor’s wrongful acts. In assisting Appellant Ortega,
Jr. carry the body of Masangkay to the well, Appellant Garcia was
committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e., that of being an accessory in the crime of
homicide.30 Although Appellant Garcia may have been unaware that the
victim was still alive when he assisted Ortega in throwing the body into the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 24
well, he is still liable for the direct and natural consequence of his felonious
act, even if the resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the victim.
But the autopsy conducted by the NBI medico-legal officer showed that the
victim at that time was still alive, and that he died subsequently of
drowning.31 That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the victim’s airway,
lungs and stomach.32 This is evident from the expert testimony given by the
medico-legal officer, quoted below:33
ATTY. ALTUNA:
“Q Will you please explain this in simple language the last portion of Exhibit
N, beginning with ‘tracheo-bronchial tree,’ that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this
particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or
the taking or receiving of muddy particles at that time, the person is still
alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior
surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood
going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy
particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or
asphyxia, the lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which
is number 13?
A Yes, sir.
Q And the last one, under the particular point ‘hemothorax’?
A It indicates at the right side. There are around 1,400 cc of blood that
accumulate at the thoraxic cavity and this was admixed with granular
materials?
Q And what cause the admixing with granular materials on said particular
portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I
correct?
A It’s due to stab wounds those muddy particles which set-in thru the stab
wounds.
Q So, because of the opening of the stab wounds, the mudd particles now
came in, in that particular portion of the body and caused admixing of
granular materials?
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 25
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you
please explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside
the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the
same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir.” (Italics supplied)
A Filipino authority on forensic medicine opines that any of the following
medical findings may show that drowning is the cause of death:34
“1. The presence of materials or foreign bodies in the hands of the victim.
The clenching of the hands is a manifestation of cadaveric spasm in the
effort of the victim to save himself from drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to the
medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the
medium where the victim was found.
5. Presence of water in the middle ear.”
The third and fourth findings were present in the case of Victim Masangkay.
It was proven that his airpassage, or specifically his tracheo-bronchial tree,
was filled with muddy particles which were residues at the bottom of the
well. Even his stomach was half-filled with such muddy particles. The
unrebutted testimony of the medico-legal officer that all these muddy
particles were ingested when the victim was still alive proved that the victim
died of drowning inside the well.
The drowning was the direct, natural and logical consequence of the felony
that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill.35
In spite of the evidence showing that Appellant Garcia could be held liable
as principal in the crime of homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory—as prayed for by appellants’
counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
“attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon
on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA.”
The prosecution’s evidence itself shows that Garcia had nothing to do with
the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and
the resulting drowning of Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an offense, unless it is
clearly charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against him.
To convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.36 Section 14,
par. 2, of the 1987 Constitution explicitly guarantees the following:
“(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and his failure to
appear is unjustifiable.” (Italics supplied)
In People vs. Pailano,37 this Court ruled that there can be no conviction for
rape on a woman “deprived of reason or otherwise unconscious” where the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 26
information charged the accused of sexual assault “by using force or
intimidation,” thus:
“The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at the
trial that the complainant was a mental retardate. Its purpose in doing so is
not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the
ground that he violated Anita while she was deprived of reason or
unconscious, such conviction could not have been possible under the
criminal complaint as worded. This described the offense as having been
committed by ‘Antonio Pailano, being then provided with a scythe, by means
of violence and intimidation, (who) did, then and there, wilfully, unlawfully
and feloniously have carnal knowledge of the complainant, Anita Ibañez, 15
years of age, against her will.’ No mention was made of the second
circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita
while she was unconscious or otherwise deprived of reason—and not
through force and intimidation, which was the method alleged—would have
violated his right to be informed of the nature and cause of the accusation
against him. [Article IV, Sec. 19, Constitution of 1973; now Article III, Sec.
14(2)] This right is safeguarded by the Constitution to every accused so he
can prepare an adequate defense against the charge against him. Convicting
him of a ground not alleged while he is concentrating his defense against
the ground alleged would plainly be unfair and underhanded. This right was,
of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged
with rape could not be found guilty of qualified seduction, which had not
been alleged in the criminal complaint against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for
homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of—and acquitted—
was not homicide but rape. More to the point is Tubb v. People of the
Philippines, [fn: 101 Phil. 114] where the accused was charged with the
misappropriation of funds held by him in trust with the obligation to return
the same under Article 315, paragraph 1(b) of the Revised Penal Code, but
was convicted of swindling by means of false pretenses, under paragraph
2(b) of the said Article, which was not alleged in the information. The Court
said such conviction would violate the Bill of Rights.”
By parity of reasoning, Appellant Garcia cannot be convicted of homicide
through drowning in an information that charges murder by means of
stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in “concealing x x x the body of the crime, x x x in order to prevent
its discovery,” he can neither be convicted as an accessory after the fact
defined under Article 19, par. 2, of the Revised Penal Code. The records
show that Appellant Garcia is a brother-in-law of Appellant Ortega,38 the
latter’s sister, Maritess, being his wife.39 Such relationship exempts
Appellant Garcia from criminal liability as provided by Article 20 of the
Revised Penal Code:
“ART. 20. Accessories who are exempt from criminal liability.—The penalties
prescribed for accessories shall not be imposed upon those who are such
with respect to their spouses, ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives by affinity within the same
degrees with the single exception of accessories falling within the provisions
of paragraph 1 of the next preceding article.”
On the other hand, “the next preceding article” provides:
“ART. 19. Accessories.—Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of
the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.”
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted
exempting provision of the Revised Penal Code. This Court is thus mandated
by law to acquit him.
Penalty and Damages
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 27
The award of actual damages should be reduced to P31,790.00 from
P35,000.00. The former amount was proven both by documentary evidence
and by the testimony of Melba Lozano, a sister of the victim.40 Of the
expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim.41 However, in line with
current jurisprudence,42 Appellant Ortega shall also indemnify the heirs of
the deceased in the sum of P50,000.00. Indemnity requires no proof other
than the fact of death and appellant’s responsibility therefor.43
The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant Ortega.
Because he is entitled to the benefits of the Indeterminate Sentence Law,
the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED.
Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced
to ten (10) years of prision mayor medium, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium, as
maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the
victim P50,000.00 as indemnity and P31,790.00 as actual damages.
Appellant Manuel Garcia is ACQUITTED. His immediate release from
confinement is ORDERED unless he is detained for some other valid cause.
SO ORDERED.
     Narvasa (C.J., Chairman), Davide, Jr., Melo and Francisco, JJ., concur.
Appeal partly granted.
Note.—The right to be informed has the following objectives—First. To
furnish the accused with such a description of the charge against him as will
enable him to make his defense; second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause;
and third, to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one should be
had. (People vs. Pecho, 262 SCRA 518 [1996])
——o0o—— People vs. Ortega, Jr., 276 SCRA 166, G.R. No. 116736 July 24,
1997
[No. 21741. January 25, 1924]
AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial
fiscal of Tayabas, and FEDERICO M. UNSON, justice of the peace of
Lucena, Tayabas, respondents.
1.CONSTITUTIONAL LAW; CRIMINAL PROCEDURE; SPEEDY TRIAL.—Phil-
ippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial.
2.ID.; ID.; ID.—The Government of the Philippine Islands should be the last
to set an example of delay and oppression in the administration of justice.
3.ID.; ID.; ID.; MANDAMUS; HABEAS CORPUS.—Where a prosecuting
officer, without good cause, secures postponements of the trial of a
defendant against his protest beyond a reasonable period of time, as in this
instance for more than a year, the accused is entitled to relief by a
proceeding in mandamus to compel a dismissal of the information, or if he
be restrained of his liberty, by habeas corpus to obtain his freedom. Conde
vs. Rivera and Unson, 45 Phil. 650, No. 21741 January 25, 1924.
MALCOLM, J.:
Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been
forced to respond to no less than five informations for various crimes and
misdemeanors, has appeared with her witnesses and counsel at hearings no
less than on eight different occasions only to see the cause postponed, has
twice been required to come to the Supreme Court for protection, and now,
after the passage of more than one year from the time when the first
information was filed, seems as far away from a definite resolution of her
troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a speedy trial in order
that if innocent she may go free, and she has been deprived of that right in
defiance of law. Dismissed from her humble position, and compelled to
dance attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to her and a
detriment to the public. By the use of reasonable diligence, the prosecution
could have settled upon the appropriate information, could have attended to
the formal preliminary examination, and could have prepared the case for a
trial free from vexatious, capricious, and oppressive delays.
Once before, as intimidated, the petitioner had to come to us for redress of
her grievances. We thought then we had pointed out the way for the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 28
parties. But it seems not. Once again therefore and finally, we hope, we
propose to do all in our power to assist this poor woman to obtain justice.
On the one hand has been the petitioner, of humble station, without
resources, but fortunately assisted by a persistent lawyer, while on the other
hand has been the Government of the Philippine Islands which should be the
last to set an example of delay and oppression in the administration of
justice. The Court is thus under a moral and legal obligation to see that
these proceedings come to an end and that the accused is discharged from
the custody of the law.
We lay down the legal proposition that, where a prosecuting officer, without
good cause, secures postponements of the trial of a defendant against his
protest beyond a reasonable period of time, as in this instance for more than
a year, the accused is entitled to relief by a proceeding in mandamus  to
compel a dismissal of the information, or if he be restrained of his liberty, by
habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of
Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further
our previous decision in Conde vs. Judge of First Instance, Fourteenth
Judicial District, and the Provincial Fiscal of Tayabas, No. 21236. 1
The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall
abstain from further attempts to prosecute the accused pursuant to
informations growing out of the facts set forth in previous informations, and
the charges now pending before the justice of the peace of Lucena,
Tayabas, are ordered dismissed, with cost against the respondent fiscal. We
append to our order the observation that, without doubt, the Attorney-
General, being fully cognizant of the facts of record, will take such
administrative action as to him seems proper to the end that incidents of
this character may not recur. So ordered.
No. L-62810. July 25, 1983.*
EULALIA MARTIN, petitioner, vs. GEN. FABIAN VER, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES and GEN. HAMILTON
DIMAYA, JUDGE ADVOCATE GENERAL, respondents.
Military Law; Jurisdiction; A court-martial retains jurisdiction in certain case
even after a soldier has been discharged from service, such as in case of
malversation.—Generally, court-martial jurisdiction over persons in the
military service of the Philippines ceases upon discharge or other separation
from such service. This however, is but a general rule. The Articles of War in
terms prescribe some exceptions designed to enhance discipline and good
order within the military organization. Thus, court-martial jurisdiction as to
certain cases of fraud and misappropriation of military hardware and other
government property is not extinguished by discharge or dismissal pursuant
to the 95th Article of War.
Same; Same; Habeas Corpus; A discharged soldier charged before a court-
martial of illegal sale or disposition of military hardware may still be detained
by that court even after discharge from military service.—We conclude that
despite his discharge from the military service, the petitioner is still subject
to military law for the purpose of prosecuting him for illegal disposal of
military property, and his preventive detention thereunder—pending trial and
punishment for the said offense committed when he was in the military
service—is lawful.
Constitutional Law; Habeas Corpus; Criminal Procedure; Undue delay in trial
is counted from the time the information is filed not before.—There was no
such denial. As stated by this Court in a per curiam decision: “x x x the test
of violation of the right to speedy trial has always been to begin counting
the delay from the time the information is filed, not before the filing. The
delay in the filing of the information, which in the instant case has not been
without reasonable cause, is therefore not to be reckoned with in
determining whether there has been a denial of the right to speedy trial.”
(People vs. Orsal, 113 SCRA 226 at 236.)
Same; Same; Same; Denial of right to speedy trial not quantifiable.—At any
rate, whether or not one has been denied speedy trial is not susceptible to
precise quantification. At best, the constitutional right of speedy trial is
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 29
relative, consistent with reasonable delays, taking into account the
circumstances of each case.
Same; Same; Same; There can be undue delay in trial where delay due to
unavailability of witnesses who died by virtue of grenade sold by petitioner.
—Returning to the case at hand, the criminal act imputed to the petitioner
unfortunately resulted in the death of three persons (including Rogelio Cruz
who allegedly bought the handgrenades from the petitioner) and very
serious injuries to three others whose testimony is vital to the preferment of
charges and prosecution of the petitioner. It is therefore not unreasonable
to heed the claim of respondents that the delay complained of was
occasioned by the unavailability of witnesses, a claim which has not at all
been challenged or denied by the petitioner. Martin vs. Ver, 123 SCRA 745,
No. L-62810 July 25, 1983
Arturo V. Romero for petitioner.
The Solicitor General for respondents.
PLANA, J.:
This is a petition for habeas corpus filed by Eulalia Martin on behalf of her
husband, Pvt. Francisco Martin.
Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14,
1981, when he was still in the service, he allegedly sold two grenades to one
Rogelio Cruz at P50.00 each, one of which exploded during a picnic in Laoag
City on April 17, 1981 causing the death of three persons, including Rogelio
Cruz, and injuries to three others.
According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal,
Philippine Army, having sold the grenades to Rogelio Cruz in Laoag City,
although this is denied by Pvt. Martin.
After an initial investigation conducted by the Laoag City PC and INP
authorities, a report was submitted to the Ministry of National Defense which
referred the matter to the Chief of Staff, AFP, who in turn directed the
Inspector General to conduct another investigation.
On May 5, 1981, Pvt. Martin was arrested and confined (restricted to
barracks) at Fort Bonifacio pursuant to Article 70 of the Articles of War,
infra. The following year, he was discharged from the service effective as of
May 5, 1982. On November 17, 1982 the instant petition was filed. The
following month, i.e., December 3, 1982, Pvt. Martin was charged for
violation of the 85th and 97th Articles of War, which read:
ART. 85. Waste or Unlawful Disposition of Military Property Issued to
Soldiers.—Any soldier who sells or wrongfully disposes of or willfully or
through neglect injures or losses any horse, arms, ammunition,
accouterments, equipment, clothing, or other property issued for use in the
military service, shall be punished as a court-martial may direct.
ART. 97. General Article.—Though not mentioned in these articles, all
disorders and neglects to the prejudice of good order and military discipline
and all conduct of a nature to bring discredit upon the military service shall
be taken cognizance of by a general or special or summary court-martial
according to the nature and degree of the offense, and punished at the
discretion of such court.
The charge sheet stipulates the following charges:
CHARGE I: Violation of the 85th Article of War.
Specification: In that Private Martin assigned with the Headquarters and
Headquarters Service Battalion, First Infantry Division, Philippine Army on or
about 14 April 1981 at Laoag City wrongly disposed of by sale to Rogelio
Cruz two (2) grenades.
CHARGE II: Violation of the 97th Article of War.
Specification: In that Private Francisco Martin, ... on or about the month of
April 1981 at Laoag City, unlawfully and without authority had in his
possession two (2) hand grenades thus committing an act prejudicial to
good order and military discipline and of a nature that will bring discredit to
the military establishment.
The petitioner contends that having been discharged from the military
service, he is no longer subject to court-martial even if the offenses of which
he is charged were committed while he was still subject to military law. He
therefore, concludes that his continued detention pursuant to Article 70 of
the Articles of War (which authorizes the arrest/confinement of any person
subject to military law who is charged with an offense under the Articles of
War) is illegal and he, accordingly, should be released. This posture has no
merit.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 30
Generally, court-martial jurisdiction over persons in the military service of
the Philippines ceases upon discharge or other separation from such service.
This however, is but a general rule. The Articles of War in terms prescribe
some exceptions designed to enhance discipline and good order within the
military organization. Thus, court-martial jurisdiction as to certain cases of
fraud and misappropriation of military hardware and other government
property is not extinguished by discharge or dismissal pursuant to the 95th
Article of War.
ART. 95. Frauds Against the Government.—Any person subject to military
law ...
Who steals, embezzles, knowingly and willingly misappropriates, applies to
his own use or benefit or wrongfully or knowingly sells or disposes of any
ordnance, arms, equipment, ammunition, clothing, subsistence, stores,
money, or other property of the Government furnished or intended for the
military service thereof ...
Shall, on conviction thereof, be punished by fine or imprisonment, or by
such other punishment as a court-martial may adjudge, or by any or all of
said penalties. And if any person, being guilty of any of the offenses
aforesaid while in the service of the Armed Forces of the Philippines or of
the Philippine Constabulary receives his discharge or is dismissed from the
service, he shall continue to be liable to be arrested and held for trial and
sentence by a court-martial in the same manner and to the same extent as if
he had not received such discharge nor been dismissed. (Emphasis
supplied.)
It was on the basis of the foregoing legal provision, among others, that this
Court sustained the court-martial of the petitioner in De la Cruz vs. Alcaraz,
et al. after his reversion to inactive status, for misappropriation of public
funds committed while he was still in the active military service. The Court,
thru Mr. Justice J. B. L. Reyes, said:
There is no question that although appellant had been reverted to inactive
(civilian) status in the reserve force of the Philippine Army, he is still
amenable to investigation and court-martial under the Artitles of War by the
Philippine Navy for alleged acts of misappropriation of government funds
committed while he was still in the active military service. As correctly held
by the Court below, appellant's case falls within the provisions of Article 95
of the Articles of War (Commonwealth Act No. 408, as amended), which
provides as follows: ...
The lower Court did not, therefore, err in refusing to enjoin appellant's
investigation by the naval authorities on charges that he had
misappropriated public property while he was still in the service of the
Philippine Navy, specially since petitioner admits that he is still a member of
the Reserve Force." (99 Phil. 130 at 131-132.).
We conclude that despite his discharge from the military service, the
petitioner is still subject to military law for the purpose of prosecuting him
for illegal disposal of military property, and his preventive detention
thereunder — pending trial and punishment for the said offense committed
when he was in the military service — is lawful.
Alternatively, petitioner maintains that even assuming that the jurisdiction of
the military authorities to try and punish him was not abated by his
discharge from military service, the denial to him of his constitutional right
to speedy trial (he having been confined from the date of his arrest on May
5, 1981 up to December 3, 1982 when he was formally charged — a period
of I year and 7 months) entitles him to be released on habeas corpus.
The fundamental rights guaranteed in the Constitution apply to all persons,
including those subject to military law, (Aquino vs. Military Commission No.
2, 63 SCRA 546; Cayaga vs. Tangonan, 66 SCRA 216; Go vs. Olivas, 74
SCRA 230; Romero vs. Ponce Enrile, 75 SCRA 429.) To quote Ex Parte
Milligan, 4 Wall. 2:
The Constitution is a law for rulers and for people equally in war and in
peace and covers with the shield of its protection all classes of men at all
times and under all circumstances.
It would indeed be parodoxical if military men who are called upon in times
of the gravest national crises to lay down their lives in defense of peace and
freedom would be the very people to be singled out for denial of the
fundamental rights for which they risk their lives.
For denial of a constitutional right to the accused, the hearing tribunal may
lose its jurisdiction to conduct further proceedings. In such a case, habeas
corpus would lie to obtain the release of the accused. (Gumabon vs.
Director, 37 SCRA 420; Acevedo vs. Sarmiento, 36 SCRA 247; Aquino vs.
Ponce Enrile, 59 SCRA 183; Flores vs. People, 61 SCRA 331; Dacuyan vs.
Ramos, 85 SCRA 487, Ventura vs. People, 86 SCRA 188; Romero vs. Ponce
Enrile, 75 SCRA 429; Aquino vs. Ponce Enrile, supra; Go vs. Olivas, supra.)
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 31

In the case at bar, the petitioner claims that he has been denied his WHEREFORE, the petition for habeas corpus is dismissed, without prejudice
constitutional right of speedy trial because the charges against him were to the petitioner seeking his provisional release on bail from the military
filed only about 1 year and 7 months after his arrest. authorities or the Ministry of National Defense. No costs.

There was no such denial. As stated by this Court in a per curiam decision: SO ORDERED.
"x... the test of violation of the right to speedy trial has always been to begin
counting the delay from the time the information is filed, not before the
filing. The delay in the filing of the information, which in the instant case has
not been without reasonable cause, is therefore not to be reckoned with in
determining whether there has been a denial of the right to speedy trial."
(People vs. Orsal, 113 SCRA 226 at 236.)

At any rate, whether or not one has been denied speedy trial is not
susceptible to precise quantification. At best, the constitutional right of
speedy trial is relative, consistent with reasonable delays, taking into
account the circumstances of each case. As expressed in Barker vs. Wingo,
33 L. Ed 2d 101:
G.R. No. 159098. October 27, 2006.*
... the right to a speedy trial is a more vague and generically different SPS. HENRY and ROSARIO UY, petitioners, vs. HON. JUDGE
concept than other constitutional rights guaranteed to accused persons and
ARSENIO P. ADRIANO, in his capacity as Pairing Judge of RTC, Br.
cannot be quantified into a specified number of days or months, and it is
64, Tarlac City, CITY PROSECUTOR ALIPIO C. YUMUL and
impossible to pinpoint a precise time in the judicial process when the right
must be asserted or considered waived ... PIÑAKAMASARAP CORP., respondents.

Speedy Trial; Constitutional Law; Words and Phrases; “Speedy trial” is a

... a claim that a defendant has been denied his right to a speedy trial is
subject to a balancing test, in which the conduct of both the prosecution and
the defendant are weighed, and courts should consider such factors as
length of the delay, reason for the delay, the defendant's assertion or non-
assertion of his right, and prejudice to the defendant resulting from the
delay, in determining whether defendant's right to a speedy trial has been
denied ...
Returning to the case at hand, the criminal act imputed to the petitioner
unfortunately resulted in the death of three persons (including Rogelio Cruz
who allegedly bought the handgrenades from the petitioner) and very
serious injuries to three others whose testimony is vital to the preferment of
charges and prosecution of the petitioner. It is therefore not unreasonable
to heed the claim of respondents that the delay complained of was
occasioned by the unavailability of witnesses, a claim which has not at all
been challenged or denied by the petitioner.
relative term and necessarily a flexible concept—in determining whether the
right of the accused to a speedy trial was violated, the delay should be
considered, in view of the entirety of the proceedings—indeed, more
mathematical reckoning of the time involved would not suffice as the
realities of everyday life must be regarded in judicial proceedings which,
after all, do not exist in a vacuum.—Under the Constitution and Section 1(7)
of Rule 115 of the Revised Rules of Criminal Procedure, the accused shall be
entitled to have a speedy and impartial trial. “Speedy trial” is a relative term
and necessarily a flexible concept. In determining whether the right of the
accused to a speedy trial was violated, the delay should be considered, in
view of the entirety of the proceedings. Indeed, mere mathematical
reckoning of the time involved would not suffice as the realities of everyday
life must be regarded in judicial proceedings which, after all, do not exist in
a vacuum.
Same; Same; Different weights should be assigned to various reasons by
which the prosecution justifies the delay—a deliberate attempt to delay the
trial in order to hamper the defense should be weighed heavily against the
prosecution—a more neutral reason such as negligence or overcrowded
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 32
courts should be weighed less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.—Different weights should be
assigned to various reasons by which the prosecution justifies the delay. A
deliberate attempt to delay the trial in order to hamper the defense should
be weighed heavily against the prosecution. A more neutral reason such as
negligence or overcrowded courts should be weighed less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with defendant.
Same; Same; The right to speedy trial cannot be invoked where to sustain
the same would result in a clear denial of due process to the prosecution—it
should not operate in depriving the State of its inherent prerogative to
prosecute criminal cases generally in seeing to it that all of those who
approach the bar of justice is afforded fair opportunity to present their side.
— Certainly, the right to speedy trial cannot be invoked where to sustain the
same would result in a clear denial of due process to the prosecution. It
should not operate in depriving the State of its inherent prerogative to
prosecute criminal cases or generally in seeing to it that all those who
approach the bar of justice is afforded fair opportunity to present their side.
For it is not only the State; more so, the offended party who is entitled to
due process in criminal cases. In essence, the right to a speedy trial does
not preclude the people’s equally important right to public justice.
Same; Same; The assertion of the right to a speedy trial is entitled to a
strong evidentiary weight in determining whether defendant is being
deprived thereof—failure to claim the right will make it difficult to prove that
there was a denial of a speedy trial.—The assertion of the right to a speedy
trial is entitled to strong evidentiary weight in determining whether
defendant is being deprived thereof. Failure to claim the right will make it
difficult to prove that there was a denial of a speedy trial.
Same; Same; The right to a speedy trial is a privilege of the accused—if he
does not claim it, he should not complain. R.A. No. 8493 (Speedy Trial Act of
1998) is a means of enforcing Section 14(2), Article III of the Constitution—
the spirit of the law is that the accused must go on record in the attitude of
demanding a trial or resisting delay. If he does not do this, he must be held,
in law, to have waived the privilege.—In the same vein, one’s failure to
timely question the delay in the trial of a case would be an implied
acceptance of such delay and a waiver of the right to question the same.
Except when otherwise expressly so provided, the speedy trial right, like any
other right conferred by the Constitution or statute, may be waived when
not positively asserted. A party’s silence may amount to laches. The right to
a speedy trial is a privilege of the accused. If he does not claim it, he should
not complain. R.A. No. 8493 (Speedy Trial Act of 1998) is a means of
enforcing Section 14(2), Article III of the Constitution. The spirit of the law
is that the accused must go on record in the attitude of demanding a trial or
resisting delay. If he does not do this, he must be held, in law, to have
waived the privilege.
Same; Same; The right to a speedy trial is not primarily intended to prevent
prejudice to the defense caused by the passage of time, that interest is
protected primarily by the due process clause and the statutes of limitations.
— As neither the specific types of prejudice mentioned in Barker nor any
others have been brought to the Court’s attention, we are constrained to
dismiss petitioners’ claim. The passage of time alone, without a significant
deprivation of liberty or impairment of the ability to properly defend oneself,
is not absolute evidence of prejudice. The right to a speedy trial is not
primarily intended to prevent prejudice to the defense caused by the
passage of time; that interest is protected primarily by the due process
clause and the statutes of limitations. Uy vs. Adriano, 505 SCRA 625, G.R.
No. 159098 October 27, 2006
CALLEJO, SR., J.:
Challenged in this instant Petition for Review on Certiorari is the Decision1 of
the Court of Appeals (CA) in CA-G.R. SP No. 62103 which affirmed the
Orders of the Regional Trial Court (RTC) of Tarlac City2 denying the motion
to quash the Information in Criminal Case Nos. 6512-94.
Based on a confidential information that petitioner Henry Uy had been
engaged in manufacturing, delivering, and selling "fake" Marca Piña soy
sauce,3 Orlando S. Bundoc, Intelligence Officer II of the Economic
Intelligence and Investigation Bureau (EIIB), applied for a search
warrant4 for unfair competition which was granted on February 14, 1994.
When the search warrant was implemented on even date, Atty. Francisco R.
Estavillo, agent of the National Bureau of Investigation (NBI) in Tarlac,
seized fifty-five (55) bottles of label Marca Piña soy sauce. 5
Consequently, a criminal complaint was filed in the Municipal Trial Court
(MTC) of Tarlac City on March 23, 1994, charging petitioner Henry Uy with
violation of Article 189 (Unfair Competition) of the Revised Penal Code. 6
On November 8, 1994, private respondent Piñakamasarap Corporation
moved to amend the criminal charge by including Henry's spouse, petitioner
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 33
Rosario Uy.7 The court granted the motion in its Order dated November 15,
1994 and admitted the amended criminal complaint which reads:
The undersigned, LUIS E. GONZALES, Comptroller of
PIÑAKAMASARAP CORPORATION of 583 Sta. Veronica St.,
Novaliches, Quezon City, and by authority of the said corporation,
under oath accuses HENRY UY, ROSARIO GUTIERREZ UY and a
certain JOHN DOE of Violation of Article 189 of the Revised Penal
Code, committed as follows:
That on or about February 14, 1994, and for sometimes (sic) prior
thereto, in Municipality of Tarlac, Tarlac, Philippines, the said
Rosario G. Uy accused, being then the owner of a business
establishment with principal address at Phase I, Northern Hills
Subdivision, San Vicente, Tarlac, Tarlac, and her co-accused,
husband, HENRY UY, and a certain John Doe, did then and there,
willfully, unlawfully and feloniously conspire and confederate
together and help one another engaged in unfair competition with
the intention of deceiving and defrauding the public in general and
the consuming public in general and PIÑAKAMASARAP Corporation,
the manufacturer and bottler of soy sauce under the name "MARCA
PIÑA," a [trademark] duly registered with the Philippine Patent
Office and sell or offer for sale soy sauce manufactured by them
with the brand name "Marca Piña" which is a bastard version of the
trademark, and using the bottles of Piñakamasarap Corporation and
substituted the contents thereof with those manufactured by the
accused and passing to the public that said products to be the
products of Piñakamasarap Corporation which is not true, thereby
inducing the public to believe that the above-mentioned soy sauce
sold or offered for sale by said accused are genuine "MARCA PIÑA"
soy sauce manufactured by PIÑAKAMASARAP CORPORATION, and
of inferior quality to the damage and prejudice of the
Piñakamasarap Corporation.
Contrary to law.
Tarlac, Tarlac, November 8, 1994.8
After preliminary examination of the prosecution witnesses, the court found
probable cause to indict petitioners.9 On January 30, 1995, the court issued
a warrant of arrest against petitioners. 10 They were released after posting a
cash bond on February 1, 1995.11 On July 10, 1995, petitioners were
arraigned, assisted by counsel, and pleaded not guilty to the
charge.12 Petitioners, through counsel, waived the pre-trial conference on
October 25, 1995. The initial trial was set on November 27, 1995. 13
However, it was only on February 26, 1996 that the first witness of the
prosecution, Atty. Estavillo of the NBI, testified. In the meantime, in October
1996, this Court issued Administrative Order (A.O.) No. 104-96 providing,
inter alia, that the RTC shall have exclusive jurisdiction over violations of
Articles 188 and 189 of the Revised Penal Code and Republic Act (R.A.) No.
166, as amended, thus:
VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS SUCH AS, BUT
NOT LIMITED TO, VIOLATIONS OF ART. 188 OF THE REVISED
PENAL CODE (SUBSTITUTING AND ALTERING TRADEMARKS,
TRADE NAMES, OR SERVICE MARKS), ART. 189 OF THE REVISED
PENAL CODE (UNFAIR COMPETITION, FRAUDULENT
REGISTRATION OF TRADEMARKS, TRADE NAMES, OR SERVICE
MARKS, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE
DESCRIPTION), P.D. NO. 49 (PROTECTION OF INTELLECTUAL
PROPERTY RIGHTS), P.D. NO. 87 (AN ACT CREATING THE
VIDEOGRAM REGULATORY BOARD), R.A. NO. 165, AS AMENDED
(THE PATENT LAW), AND R.A. NO. 166, AS AMENDED (THE
TRADEMARK LAW) SHALL BE TRIED EXCLUSIVELY BY THE
REGIONAL TRIAL COURTS IN ACCORDANCE WITH THE
ESTABLISHED RAFFLE SCHEME EXCEPT THOSE COVERED BY
ADMINISTRATIVE ORDER NO. 113-95 DATED 2 OCTOBER 1995, IN
WHICH CASE, THE DESIGNATED REGIONAL TRIAL COURTS SHALL
CONTINUE TO OBSERVE THE PROVISIONS THEREIN.
CONSIDERING THAT JURISDICTION FOR VIOLATIONS OF
INTELLECTUAL PROPERTY RIGHTS HEREINBEFORE MENTIONED IS
NOW CONFINED EXCLUSIVELY TO THE REGIONAL TRIAL COURTS,
THE DESIGNATION OF METROPOLITAN TRIAL COURTS AND
MUNICIPAL TRIAL COURTS IN CITIES UNDER ADMINISTRATIVE
ORDER NO. 113-95 IS DELETED AND WITHDRAWN.
Despite the administrative order of the Court, the MTC continued with the
trial. Gloria P. Tomboc, Analyst of the Bureau of Food and Drugs
Administration (BFAD), testified on August 25, 1997. In the meantime,
Articles 188 and 189 of the Revised Penal Code were amended by R.A. No.
8293, otherwise known as the Intellectual Property Code. Two years
thereafter, Alfredo Lomboy, supervisor of Piñakamasarap Corporation,
testified on August 30, 1999.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 34
On December 12, 1999, the prosecution filed its formal offer of
evidence.14 In the meantime, on October 22, 1999, Atty. Joselito L. Lim had
moved to withdraw his appearance as counsel for petitioners; 15 the court
had granted the motion on October 25, 1999; 16 and the new counsel of
petitioners, Balbastro and Associates, had entered its appearance on
November 24, 1999.17
On February 15, 2000, the court resolved to admit the documentary
evidence of the prosecution except Exhibit "E" which was rejected by the
court, and Exhibits "I" and "J" which were withdrawn. 18 The prosecution
rested its case.
On March 10, 2000, petitioners, through their new counsel, filed a Motion for
Leave to File Demurrer to Evidence.19The court granted the motion. In their
demurrer,20 petitioners argued that a judgment of acquittal is proper since
no sufficient evidence was presented to prove beyond reasonable doubt that
they are guilty of the offense charged. The prosecution was not able to
establish that they gave their goods the general appearance of another
manufacturer or dealer and that they had the intent to defraud the public or
Piñakamasarap Corporation. Moreover, under both R.A. No. 166, as
amended, and its repealing law, R.A. No. 8293, the RTC had jurisdiction over
the crime charged; hence, the amended complaint should be quashed.
The prosecution opposed the demurrer to evidence, contending that it had
presented proof beyond reasonable doubt of the guilt of petitioners for the
crime charged. The prosecution maintained that, under Batas Pambansa
(B.P.) Blg. 129, the MTC had jurisdiction over the crime charged in the light
of the imposable penalty for unfair competition under Article 189 of the
Revised Penal Code.21
In its Resolution dated May 16, 2000,22 the court held that there was prima
facie evidence which, if unrebutted or not contradicted, would be sufficient
to warrant the conviction of petitioners. However, the court ruled that the
RTC was vested by law with the exclusive and original jurisdiction to try and
decide charges for violation of R.A. No. 166 as amended by R.A. No. 8293.
Accordingly, the court denied the demurrer to evidence and ordered the
records of the case forwarded to the Office of the Provincial Prosecutor for
appropriate action.
The City Prosecutor forwarded the case records to the Clerk of Court of RTC,
Br. 63, Tarlac City.23 On June 19, 2000, the RTC ordered the City Prosecutor
to conduct the requisite preliminary investigation and to file the necessary
Information if he found probable cause against petitioners.
The City Prosecutor found probable cause based on the findings of the MTC
in its May 16, 2000 Resolution that there was a prima facie case against
petitioners.24 He filed an Information in the RTC on July 18, 2000 for
violation of Article 189 of the Revised Penal Code. 25 The Information reads:
That on or about February 14, 1994 and sometime prior thereto, at
Tarlac City, and within the jurisdiction of this Honorable Court, the
accused, being the owner of a business establishment with principal
address at Phase I, Northern Hills Subd., San Vicente, Tarlac City,
the accused, conspiring, confederating and helping one another did
then and there willfully, unlawfully and feloniously, in unfair
competition with the intention of deceiving and defrauding the
public in general and the PIÑAKAMASARAP CORPORATION, the
name "MARCA PIÑA," and sell or offer for sale soy sauce
manufactured by them with the brand name "Marca Piña," which is
a version of the trademark, and using the bottles of Piñakamasarap
Corporation and substituted the contents thereof with those
manufactured by the accused and passing to the public the
products, thereby inducing the public to believe that the soy sauce
sold or offered for sale by the accused are genuine "MARCA PIÑA"
soy sauce, to the damage and prejudice of PIÑAKAMASARAP
CORPORATION.
CONTRARY TO LAW.26
Petitioners filed a Motion to Quash the Information,27 alleging that their
rights to due process and speedy trial had been violated. Other than the
notice of hearing sent by the court, they never received a subpoena which
required them to submit their evidence during a preliminary investigation.
Petitioners further averred that certain delays in the trial are permissible,
especially when such delays are due to uncontrollable circumstances or by
accident. In this case, the inordinate delay was obviously brought by the
lackadaisical attitude taken by the prosecutor in prosecuting the case.
Petitioners pointed out that there was already a delay of six (6) long years
from the time the initial complaint was filed, and that they had already been
prejudiced. Their life, liberty and property, not to mention their reputation,
have been at risk as there has been no determination of the issue of
whether or not to indict them. Thus, the case should be dismissed in order
to free them from further capricious and oppressive dilatory tactics of the
prosecution. Indeed, their right to a speedy trial is part of due process, both
of which are guaranteed by no less than the fundamental law itself. They
insisted that they should not be made to unjustly await the prosecution of
the charges against them.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 35
In opposition, the City Prosecutor clarified that subpoenas were sent to the
parties during the preliminary investigation. In fact, petitioner Henry Uy
appeared and submitted the case for resolution without submitting
additional evidence. Also, the proceedings in the MTC were not part of
preliminary investigation but the trial on the merits. 28
On September 8, 2000, the court issued an Order denying the motion to
quash.29 The court ruled that:
While there must have been a protracted trial since the case was
originally filed before the Municipal Trial Court, a period of about
six (6) years, as the accused contends, nevertheless the delay if
any, is partly attributable to the accused. [They] allowed the
prosecution to rest the evidence in chief before raising the issue of
lack of jurisdiction. Had the accused immediately raised the issue of
lack of jurisdiction, this case could have been filed anew before the
RTC. The accused allowed themselves to be arraigned without
raising the issue of jurisdiction. In fact, the prosecution [had]
rested its evidence in chief.
The parties may[,] however[,] stipulate in the pre-trial that all the
proceedings taken before the Municipal Trial Court are
automatically reproduced and are considered part of the
prosecution's evidence, so that the trial will now be with respect to
the reception of defense evidence.30
Petitioners filed a motion for reconsideration of the Order 31 which the trial
court denied.32 At the same time, the court granted the oral motion of the
prosecution to amend the Information to reflect in its caption that the law
violated by the accused is R.A. No. 8293 and not Article 189 of the Revised
Penal Code. On October 12, 2000, the City Prosecutor filed an amended
Information. The inculpatory portion reads:
That on or about February 14, 1994 and sometimes prior thereto,
at Tarlac City, and within the jurisdiction of this Honorable Court,
the accused, being the owner of a business establishment with
principal address at Phase I, Northern Hills Subd., San Vicente,
Tarlac City, the accused, conspiring, confederating and helping one
another did then and there willfully, unlawfully and feloniously,
in Violation of Sec. 168 of R.A. No. 8293with the intention of
deceiving and defrauding the public in general and the
PIÑAKAMASARAP CORPORATION, the name "MARCA PIÑA," and
sell or offer for sale soy sauce manufactured by them with the
brand name "Marca Piña," which is a version of the trademark, and
using the bottles of Piñakamasarap Corporation and substituted the
contents thereof with those manufactured by the accused and
passing to the public the products, thereby inducing the public to
believe that the soy sauce sold or offered for sale by the accused
are genuine "MARCA PIÑA" soy sauce, to the damage and
prejudice of PIÑAKAMASARAP CORPORATION.
CONTRARY TO LAW.33
Petitioners then filed before the CA a petition for certiorari with prayer for
temporary restraining order and preliminary injunction,34 on the sole ground
that respondent judge committed grave abuse of discretion in denying their
motion to quash based on violation of their right to a speedy trial. They
claimed that there was no active effort on their part to delay the case as
they merely attended the scheduled hearings and participated in the
preliminary investigation. On the contrary, it is the prosecution that has the
unmitigated obligation to immediately file the Information with the proper
court. The public prosecutor is supposedly knowledgeable of the existing
laws and jurisprudence since his office has the delicate task of prosecuting
cases in behalf of the State. Under the Rules on Criminal Procedure, he is
the officer responsible for the direction and control of criminal prosecutions.
In the case at bar, the public prosecutor failed in his bounden duty by
neglecting to file the case in the court of competent jurisdiction. The
prosecution could not advance a single reason to justify the procedural error
and instead pointed its accusing finger to petitioners who are just ordinary
citizens. Their failure to call the attention of the prosecution is neither
acquiescence nor consent on their part. While their former lawyer was
obviously lackluster in their defense, the act of the counsel should not
deprive them of their constitutional right to a speedy trial. For petitioners,
the prosecution's blunder in procedure and ignorance of existing laws and
jurisprudence far outweigh whatever minimal participation, if any, they had
in the protracted proceedings.
On March 21, 2003, the CA dismissed the petition. 35 The fallo of the decision
reads:
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for lack of merit. The Orders dated September
8, 2000 and October 9, 2000 of the public respondent are
hereby DISMISSED.36
In dismissing the petition, the appellate court ratiocinated that:
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 36
[T]he right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceeding is
attended by vexatious, capricious and oppressive delays" (Castillo
v. Sandiganbayan, 328 SCRA 69, 76); "or when unjustified
postponements of the trial are asked for and secured, or when
without cause or justifiable motive a long period of time is allowed
to elapse without the party having his case tried." (Binay v.
Sandiganbayan, 316 SCRA 65, 93)
In the instant case, aside from the fact that it took almost six years
for the prosecution to complete the presentation of its evidence,
petitioners failed to show that the delay, if ever there is any, was
caused solely by the prosecution. Neither did the petitioners show
that the proceedings before the Municipal Trial Court was attended
by vexatious, capricious and oppressive delays attributable to the
prosecution or that unjustified postponements of the trial were
asked for and secured by the prosecution to the prejudice of the
petitioners. The fact alone that the prosecution had consumed six
(6) years to complete its presentation of evidence, without any
allegation or proof that the prosecution has caused unreasonable
delays or that the proceeding was attended by vexatious, capricious
and oppressive delays, to Our minds is not sufficient for the
application upon the petitioners of their Constitutional right to
speedy trial. "A mere mathematical reckoning of the time involved,
therefore, would not be sufficient. In the application of the
Constitutional guarantee of the right to speedy disposition of cases,
particular regard must also be taken of the facts and circumstances
peculiar to each case." (Binay v. Sandiganbayan, supra, p. 93). In
the case at bar, petitioners failed to present, for Our perusal, the
circumstances attending the trial of their case before the Municipal
Trial Court.
The only controversy of the instant case lies in the fact that the
Municipal Trial Court which heard the case has no jurisdiction over
the said case. While it may be conceded that the prosecution erred
in not filing the information against the petitioners to a proper
court, still, petitioners are not blameless in this regard. Petitioners,
through their counsel, had actively participated in the proceedings
before the Municipal Trial Court. Petitioners had to wait for almost
six (6) years to elapse before they brought to the attention of the
Municipal Trial Court that it had no jurisdiction to hear the case
against the petitioners. Petitioners have, by reason of their
participation in the proceedings before the Municipal Trial Court
and also by reason of their silence and inaction, allowed the
Municipal Trial Court to proceed with a case for six (6) years
despite absence of jurisdiction of such court to hear the case. We
cannot allow the petitioners to reap from their acts or omissions. "A
litigation is not a game of technicalities in which one, more deeply
schooled and skilled in the subtle art of movement and position,
entraps and destroys the other." (Fortune Corporation v. Court of
Appeals, 229 SCRA 355, 364)
"The constitutional privilege was never intended as furnishing a
technical means for escaping trial." (Esguerra v. Court of First
Instance of Manila, et al., 95 Phil. 609, 611-612) "The right of an
accused to a speedy trial is guaranteed to him by the Constitution,
but the same shall not be utilized to deprive the State of a
reasonable opportunity of fairly indicting criminals. It secures rights
to an accused, but it does not preclude the rights of public justice.
(Domingo v. Sandiganbayan, 322 SCRA 655, 667)37
Petitioners filed a motion for reconsideration, which the appellate court
denied.38
Petitioners sought relief from this Court on a petition for review, alleging
that:
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT AFFIRMED THE COURT A QUO'S DENIAL
OF PETITIONERS' MOTION TO QUASH, BASED ON VIOLATION OF
THEIR RIGHT TO SPEEDY TRIAL (SEC. 16, ART. 3, 1987
CONSTITUTION).39
Petitioners reiterate their arguments in the CA to support the present
petition. They aver that:
In this case, the prosecution took six (6) long and grueling years
before it filed an Information with a competent court, despite the
fact that jurisdiction of the Regional Trial Courts over trademark
cases remained unchanged since the birth of the Trademark Law.
Surely, this inordinate delay can be considered a "vexatious,
capricious and oppressive delay" which is constitutionally
impermissible in this jurisdiction pursuant to the right of the
accused to speedy trial.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 37
Indeed, petitioners have been prejudiced. Their lives, liberty and
property, not to mention their reputation have all been put at risk
for so long.
The public prosecutor failed to explain the reason for the delay.
Truth to tell, even at this last stage, the public prosecutor chooses
to remain silent why it had unjustifiably taken him too long to file
this case before a competent court. Unfortunately, the Court of
Appeals deliberately ignored this glaring flaw committed by the
public prosecutor and instead focused on petitioners' alleged
negligence in not raising the issue of jurisdiction earlier. It further
ruled that due to this fact, petitioners are thus not entirely
blameless for the delay of the trial.
Truth to tell, these findings of the Court of Appeals are palpably
erroneous.
Firstly, it is elementary that jurisdiction over the subject matter may
be raised at any stage of the proceedings. This is because no
amount of waiver can confer jurisdiction on a court over an offense
for which such jurisdiction has not been conferred by law in the
first place.
Secondly, even assuming that petitioners failed to raise the issue of
jurisdiction earlier, still, they could not be estopped from invoking
their right to speedy trial. The delay to be considered "partly
attributable" to the accused (which could work against him in
invoking the right to speedy trial) presupposes an active effort of
the defendant to delay the case (Manabat v. Timbang, 74 Phil.
295). There is no violation of the right to speedy trial where the
delay is imputable to the accused (Solis v. Agloro, 63 SCRA 370).
Here, it was the prosecution that had the unmitigated obligation to
file the Information with the correct court, within a reasonable
time. It did not. Such blunder was fatal to its cause.
To emphasize, petitioners need not even call the attention of the
prosecution that it had failed to file the case with the proper court,
contrary to the opinion of the Court of Appeals. x x x40
xxxx
Although petitioners agree with the Court of Appeals that mere
mathematical reckoning of time would not be sufficient for the
application of the right to speedy trial, still, the public prosecutor's
blunder should already be considered "vexatious, capricious and
oppressive" warranting the dismissal of the case.
Indeed, to condone the public prosecutor's manner of having
directed this case, just like what the Court of Appeals did, might
give rise to a disturbing precedent where the constitutional right of
the accused could very well be set aside to justify the mishandling
of the prosecution by officers of the State.41
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides
that the accused is entitled to a speedy, impartial and public trial. Section 2,
Rule 119 of the said Rules provides that trial, once commenced, shall be
continuous until terminated:
Sec. 2. Continuous trial until terminated; postponements. – Trial,
once commenced, shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable
period of time for good cause.
The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trial on a weekly or other
short-term trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial period exceed
one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court.
The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the
Supreme Court provide for a shorter period of trial.
However, any period of delay resulting from a continuance granted by the
court motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings
set forth in the order that the ends of justice is served by taking such action
outweigh the best interest of the public and the accused on a speedy trial,
shall be deducted.
The trial court may grant continuance, taking into account the following
factors:
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 38
(a) Whether or not the failure to grant a continuance in the
proceeding would likely make a continuation of such proceeding
impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual
and complex, due to the number of accused or the nature of the
prosecution, or that it is unreasonable to expect adequate
preparation within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be
granted because of congestion of the court's calendar or lack of
diligent preparation or failure to obtain available witnesses on the
part of the prosecutor.42
Under the Constitution and Section 1(7) of Rule 115 of the Revised Rules of
Criminal Procedure, the accused shall be entitled to have a speedy and
impartial trial. "Speedy trial" is a relative term and necessarily a flexible
concept.43In determining whether the right of the accused to a speedy trial
was violated, the delay should be considered, in view of the entirety of the
proceedings.44 Indeed, mere mathematical reckoning of the time involved
would not suffice45 as the realities of everyday life must be regarded in
judicial proceedings which, after all, do not exist in a vacuum.46
Apart from the constitutional provision and Section 115, Section 1(i) of the
Rules of Criminal Procedure, A.O. No. 113-95 of the Court provides that:
The trial of cases for violation of Intellectual Property Rights
covered by this Administrative Order shall be immediately
commenced and shall continue from day to day to be terminated as
far as practicable within sixty (60) days from initial trial. Judgment
thereon shall be rendered within thirty (30) days from date of
submission for decision.
More than a decade after the 1972 leading U.S. case of Barker v.
Wingo47 was promulgated, this Court, in Martin v. Ver,48 began adopting the
"balancing test" to determine whether a defendant's right to a speedy trial
has been violated. As this test necessarily compels the courts to approach
speedy trial cases on an ad hoc basis, the conduct of both the prosecution
and defendant are weighed apropos the four-fold factors, to wit: (1) length
of the delay; (2) reason for the delay; (3) defendant's assertion or non-
assertion of his right; and (4) prejudice to defendant resulting from the
delay.49 None of these elements, however, is either a necessary or sufficient
condition; they are related and must be considered together with other
relevant circumstances. These factors have no talismanic qualities as courts
must still engage in a difficult and sensitive balancing process. 50
A. Length of the Delay
The length of delay is to some extent a "triggering mechanism." Until there
is some delay, which is presumptively prejudicial, there is no necessity to
inquire into the other three factors. Nevertheless, due to the imprecision of
the right to a speedy trial, the length of delay that will provoke such an
inquiry is necessarily dependent upon the peculiar circumstances of the
case.51
B. Reason for the Delay
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the
accused have the burden to prove the factual basis of the motion to quash
the Information on the ground of denial of their right to a speedy
trial.52 They must demonstrate that the delay in the proceedings is
vexatious, capricious, and oppressive; or is caused by unjustified
postponements that were asked for and secured; or that without cause or
justifiable motive, a long period of time is allowed to elapse without the case
being tried.53 On the other hand, the prosecution is required to present
evidence establishing that the delay was reasonably attributed to the
ordinary processes of justice, and that petitioners suffered no serious
prejudice beyond that which ensued after an inevitable and ordinary delay. 54
The records bear out the contention of petitioners that there had been a
considerable delay in the trial in the MTC. Upon motion/agreement of
petitioners and the prosecution, or because of the joint absences, the trial of
the case was delayed for more than 11 months.55 In its own instance, the
MTC also reset some of the trial dates in order to correct mistakes in
scheduling or because the witnesses were not duly notified, 56 thus, delaying
the trial of the case for an additional seven months. Even petitioners
contributed to the delay of more than five months – they or their former
counsel were either absent or moved for postponements to attend another
pending case or due to health concerns.57 The delay of about 21 months,
covering 15 re-settings, can be attributed to the prosecution. However,
except in five instances, when the trial was reset because the private
prosecutor had to attend to some professional58 and personal matters,59 the
delays were brought about because of the recent engagement of legal
service,60 absence of the public prosecutor,61 and unavailability of
documents62 and witnesses.63
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 39
Not only the petitioners but the State as well were prejudiced by the
inordinate delay in the trial of the case. It took the prosecution more than
four years to rest its case after presenting only three witnesses. Had the
prosecution, petitioner and the trial court been assiduous in avoiding any
inordinate delay in the trial, the prosecution could have rested its case much
earlier. The court even failed to order the absent
counsel/prosecutor/witnesses to explain/justify their absences or cite them
for contempt. The speedy trial mandated by the Constitution and the
Revised Rules of Criminal Procedure is as much the responsibility of the
prosecution, the trial court and petitioners to the extent that the trial is
inordinately delayed, and to that extent the interest of justice is prejudiced.
The case before the RTC should not be dismissed simply because the public
prosecution did not move for the dismissal of the case in the MTC based on
A.O. No. 104-96 declaring that the RTC has exclusive jurisdiction over cases
under Articles 188 and 189 of the Revised Penal Code; or for failure of the
MTC to motu proprio dismiss the case on that ground. The City Prosecutor
then believed in good faith, albeit erroneously, that under R.A. No. 7691
which amended B.P. Blg. 129, the MTC had jurisdiction over the crime
charged.
The mistake of the City Prosecutor and the failure of the MTC to dismiss the
case motu proprio should not prejudice the interest of the State to prosecute
criminal offenses and, more importantly, defeat the right of the offended
party to redress for its grievance. Significantly, petitioners do not attribute to
the prosecution or to the MTC any malice aforethought or conscious
disregard of their right to a speedy trial; nor have substantially proven the
same by clear and convincing evidence. Hence, absent showing of bad faith
or gross negligence, delay caused by the lapse of the prosecution is not in
itself violative of the right to a speedy trial.
Different weights should be assigned to various reasons by which the
prosecution justifies the delay. A deliberate attempt to delay the trial in
order to hamper the defense should be weighed heavily against the
prosecution. A more neutral reason such as negligence or overcrowded
courts should be weighed less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must rest with the
government rather than with defendant.64
In Corpuz v. Sandiganbayan,65 the Court had carefully balanced the societal
interest in the case, which involved the so-called "tax credit certificates
scam," and the need to give substance to the defendants' constitutional
rights. In said suit, we upheld the decision of the Sandiganbayan (Special
Fourth Division) that the dismissal of the cases was too drastic, precipitate
and unwarranted. While the Court recognized that defendants were
prejudiced by the delay in the reinvestigation of the cases and the
submission of a complete report by the Ombudsman/Special Prosecutor to
the Sandiganbayan, we underscored that the State should not be prejudiced
and deprived of its right to prosecute cases simply because of the ineptitude
or nonchalance of the Ombudsman/Special Prosecutor. "An overzealous or
precipitate dismissal of a case may enable defendant, who may be guilty, to
go free without having been tried, thereby infringing the societal interest in
trying people accused of crimes by granting them immunization because of
legal error."66
The same observation was made in Valencia v. Sandiganbayan.67 Here, the
Court noted the haphazard manner by which the prosecutor handled the
litigation for the State when he rested the case without adducing evidence
for the prosecution and simply relying on the Joint Stipulation of Facts,
which the accused did not even sign before its submission to the
Sandiganbayan. In allowing the prosecution to present additional evidence
and in dismissing the claim of the accused that his constitutional right to a
speedy trial had been violated, we ruled:
As significant as the right of an accused to a speedy trial is the
right of the State to prosecute people who violate its penal laws.
The right to a speedy trial is deemed violated only when the
proceeding is attended by vexatious, capricious and oppressive
delays x x x [T]o erroneously put premium on the right to speedy
trial in the instant case and deny the prosecution's prayer to
adduce additional evidence would logically result in the dismissal of
the case for the State. There is no difference between an order
outrightly dismissing the case and an order allowing the eventual
dismissal thereof. Both would set a dangerous precedent which
enables the accused, who may be guilty, to go free without having
been validly tried, thereby infringing the interest of the society.68
Certainly, the right to speedy trial cannot be invoked where to sustain the
same would result in a clear denial of due process to the prosecution. It
should not operate in depriving the State of its inherent prerogative to
prosecute criminal cases or generally in seeing to it that all those who
approach the bar of justice is afforded fair opportunity to present their
side.69 For it is not only the State; more so, the offended party who is
entitled to due process in criminal cases.70 In essence, the right to a speedy
trial does not preclude the people's equally important right to public
justice.71 Thus, as succinctly decreed in State v. McTague:72
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 40
The constitutional and statutory provisions for a speedy trial are for
the protection of the defendant, but that does not mean that the
state is the only one that may initiate action. There is really no
reason for the courts to free an accused simply because a dilatory
prosecutor has 'gone to sleep at the switch' while the defendant
and his counsel rest in silence. These solicitous provisions are not
to be used as offensive weapons, but are for the benefit of
defendants who claim their protection. They are a shield, and they
'must not be left hanging on the wall of the armory.' It is for the
protection of personal rights, not to embarrass the administration
of the criminal law nor to defeat public justice.
Be that as it may, the conduct of the City Prosecutor and the MTC must not
pass without admonition. This Court must emphasize that the State, through
the court and the public prosecutor, has the absolute duty to insure that the
criminal justice system is consistent with due process and the constitutional
rights of the accused. Society has a particular interest in bringing swift
prosecutions, and the society's representatives are the ones who should
protect that interest. The trial court and the prosecution are not without
responsibility for the expeditious trial of criminal cases. The burden for trial
promptness is not solely upon the defense. The right to a speedy trial is
constitutionally guaranteed and, as such, is not to be honored only for the
vigilant and the knowledgeable.73
C. Petitioners' Assertion of the Right
The assertion of the right to a speedy trial is entitled to strong evidentiary
weight in determining whether defendant is being deprived thereof. Failure
to claim the right will make it difficult to prove that there was a denial of a
speedy trial.74
Except in only one instance in this case,75 the records are bereft of any
evidence that petitioners, through counsel, have bothered to raise their
objection to the several re-setting of the trial dates. This is not unexpected
since, as already shown, the reasons for the delay are not in themselves
totally inexcusable or unreasonable. Moreover, petitioners actively
participated in the trial when the prosecution presented its evidence, as they
scrutinized the documentary evidence and cross-examined the witnesses.
Until the filing of the motion to quash in the RTC, they never contested the
prosecutorial proceedings nor timely challenged the pendency of the case in
the MTC.
While it is true that lack of jurisdiction may be assailed at any stage of the
proceedings, such defense must be seasonably raised at the earliest possible
opportunity. Otherwise, active participation in the trial would estop a party
from later challenging such want of jurisdiction. 76
In the same vein, one's failure to timely question the delay in the trial of a
case would be an implied acceptance of such delay and a waiver of the right
to question the same. Except when otherwise expressly so provided, the
speedy trial right, like any other right conferred by the Constitution or
statute, may be waived when not positively asserted. 77 A party's silence may
amount to laches.78 The right to a speedy trial is a privilege of the accused.
If he does not claim it, he should not complain. R.A. No. 8493 (Speedy Trial
Act of 1998) is a means of enforcing Section 14(2), Article III of the
Constitution.79 The spirit of the law is that the accused must go on record in
the attitude of demanding a trial or resisting delay. If he does not do this, he
must be held, in law, to have waived the privilege.
This Court cannot subscribe to petitioners' untiring argument that, being
"ordinary citizens," they should not be made to suffer from the "lackluster"
performance of their former counsel who failed to recognize the MTC's want
of jurisdiction. Too often we have held that a client is bound by the acts,
mistakes or negligence of his counsel.80 This is, as it should be, since a
counsel has the implied authority to do all acts which are necessary or, at
least, incidental to the prosecution and management of the suit in behalf of
his client. Any act performed within the scope of his general and implied
authority is, in the eyes of the law, regarded as the act of the client.81 If the
rule were otherwise, there would be no end to litigation so long as a new
counsel could be employed who would allege and show that the prior
counsel had not been sufficiently diligent, experienced, or learned. 82 It would
enable every party to render inutile an adverse order or decision through the
simple expedient of alleging gross negligence on the part of the
counsel.83 Every shortcoming of a counsel could be the subject of challenge
by his client through another counsel who, if he is also found wanting, would
likewise be disowned by the same client through another counsel, and so on
ad infinitum.84 Proceedings would then be indefinite, tentative and at times,
subject to reopening by the simple subterfuge of replacing counsel.85
While the rule admits of certain exceptions,86 we find none present in this
case. Other than his obvious failure to assert lack of jurisdiction, Atty. Lim
undeniably represented the cause of his clients in the MTC proceedings.
Interestingly, their new counsel, wittingly or unwittingly, raised the issue of
jurisdiction only four months after it entered its appearance, 87 thus, adding
to the delay.
D. Prejudice to the Petitioners
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 41

In the Barker case,88 the different interests of a defendant which may be
affected by the violation of the right to a speedy trial were identified. It was
held that prejudice should be assessed in the light of the interests of a
defendant which the speedy trial right was designed to protect, namely: (1)
to prevent oppressive pretrial incarceration; (2) to minimize anxiety and
concern of the accused; and (3) to limit the possibility that the defense will
be impaired. Of these, the most serious is the last, because the inability of a
defendant to adequately prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the prejudice is
obvious. There is also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is not
always reflected in the record because what has been forgotten can rarely
be shown. Even if an accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of
anxiety, suspicion, and often hostility.89 After all, arrest is a public act that
may seriously interfere with the defendant's liberty, whether he is free on
bail or not, and that may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public obloquy, and create
anxiety in him, his family and friends.90
claim that particular evidence had been lost or had disappeared defeats
speedy trial claim.
As neither the specific types of prejudice mentioned in Barker nor any others
have been brought to the Court's attention, we are constrained to dismiss
petitioners' claim. The passage of time alone, without a significant
deprivation of liberty or impairment of the ability to properly defend oneself,
is not absolute evidence of prejudice. The right to a speedy trial is not
primarily intended to prevent prejudice to the defense caused by the
passage of time; that interest is protected primarily by the due process
clause and the statutes of limitations.91
In several cases where it is manifest that due process of law or other rights
guaranteed by the Constitution or statutes has been denied, this Court has
not faltered to accord the so-called "radical relief" to keep accused from
enduring the rigors and expense of a full-blown trial.92 In this case, however,
there appears no persuasive, much less compelling, ground to allow the
same relief for absence of clear and convincing showing that the delay was
unreasonable or arbitrary and was seasonably objected to by petitioners.

Again, a perusal of the records failed to reveal that the delay in bringing
IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for
petitioners to trial in a court of competent jurisdiction caused them any
lack of merit. The March 21, 2003 Decision and July 17, 2003 Resolution of
prejudice tantamount to deprivation of their right to a speedy trial.
the Court of Appeals are AFFIRMED. The Regional Trial Court, Branch 64,
Petitioners in this case were not subjected to pretrial incarceration,
Tarlac City, is directed to proceed with the trial on the merits of the criminal
oppressive or otherwise, thus eliminating the first Barker consideration
case with all reasonable and judicious dispatch consistent with the right of
bearing on prejudice.
petitioners to a speedy trial. No costs.

As to the minimization of anxiety and concern of the accused, there is no

SO ORDERED.
showing that petitioners suffered undue pressures in this respect. Mere
reference to a general asseveration that their "life, liberty and property, not
to mention reputation" have been prejudiced is not enough. There must be
conclusive factual basis, as this Court cannot rely on pure speculation or
guesswork. Surely, a pending criminal case may cause trepidation but, as
stressed in Barker, the standard here is minimization, not necessarily
elimination of the natural consequences of an indictment. While this is not to
be brushed off lightly, it is not by itself sufficient to support a claim of denial
of the right to a speedy trial.

There is no factual basis for the claim of petitioners that we are not supplied
with any specific allegation in the record, nor witnesses or evidence may
become unavailable because of the delays in this case. To repeat, the claim
of impairment of defense because of delay must be specific and not by mere
conjecture. Vague assertions of faded memory will not suffice. Failure to
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 42
G.R. No. 109271. March 14, 2000.*
RICARDO CASTILLO, DEMETRIO CABISON, JR., and RODOLFO
AGDEPPA, petitioners, vs. HONORABLE SANDIGANBAYAN (SECOND
DIVISION), and PEOPLE OF THE PHILIPPINES, represented by
HONORABLE CONRADO VASQUEZ, OMBUDSMAN, respondents.
Criminal Procedure; Ombudsman; Sandiganbayan; There was no need for
the Ombudsman to conduct another preliminary investigation as the one
conducted by the former Tanodbayan was valid and legal.—Petitioners’
contention is misleading. In the aforecited case, this Court clearly held that
the authority of the Tanodbayan to conduct preliminary investigations and to
direct the filing of criminal cases was lost effective February 2, 1987. The
inference, therefore, of such holding is that the Tanodbayan had such
authority prior to February 2, 1987. In this case, the Tanodbayan issued
petitioners a subpoena on September 22, 1986 directing them to file their
counter-affidavits, which the latter complied with on September 30, 1986. In
short, the preliminary investigation was conducted by the Tanodbayan
before he lost his authority to do so. Hence, there was no need for the
Ombudsman to conduct another preliminary investigation as the one
conducted by the former Tanodbayan was valid and legal. Presumably, the
new Ombudsman recognized the results of the preliminary investigation
conducted by the then Tanodbayan and adopted the conclusions reached
therein when he ordered the filing of an Information against petitioners.
Same; Constitutional Law; The right to a speedy disposition of a case, like
the right to speedy trial, is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays.—In Cojuangco, Jr.
v. Sandiganbayan, this Court has held that the constitutional guarantee set
forth in Section 16, Article III of the 1987 Constitution, of “(t)he right to a
speedy disposition of a case, like the right to speedy trial, is deemed violated
only when the proceeding is attended by vexatious, capricious, and
oppressive delays.” “x x x (T)he concept of speedy disposition of cases is a
relative term and must necessarily be a flexible concept. Hence, the
doctrinal rule is that in the determination of whether that right has been
violated, he factors that may be considered and balanced are the length of
delay, the reason for such delay and the assertion or failure to assert such
right by the accused, and the prejudice caused by the delay.”
Same; Same; Court has taken judicial cognizance of the fact that the ever
increasing caseload of courts has affected the speedy disposition of cases
pending before the Sandiganbayan.—In addition, it is clearly apparent from
the figures cited by petitioners that the Sandiganbayan was burdened with a
heavy caseload. Parenthetically, this Court has taken judicial cognizance of
the fact that the ever increasing caseload of courts has affected the speedy
disposition of cases pending before the Sandiganbayan. Castillo vs.
Sandiganbayan, 328 SCRA 69, G.R. No. 109271 March 14, 2000
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
     Leonardo G. Padilla for petitioner R. Castillo.
     Santiago D.R. Agdeppa for petitioner R. Agdeppa.
     Domingo and D.R. Agdeppa for petitioner.
     The Solicitor General for respondents.
YNARES-SANTIAGO, J.:
Before this Court is a Petition for Certiorari assailing two Orders dated
February 18, 19931 and March 8, 19932 of the Sandiganbayan’s Second
Division denying petitioners’ Motion to Dismiss and Motion for
Reconsideration.
On August 25, 1986, concerned employees of the Commission on Audit
(COA) filed a Complaint before the Tanodbayan,3 against petitioners Ricardo
Castillo, Rodolfo Agdeppa and Demetrio Cabison, Jr., COA Auditor VIII, COA
Auditor II, and COA Auditor III, respectively, all assigned at the National
Housing Authority (NHA), for alleged “submittal of initial very derogatory
reports which became the basis for the filing of cases with the Tanodbayan
and the reversals of their initial recommendations for selected contractors.”
Petitioners were notified of the Complaint on September 22, 1986 when they
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 43
were directed by the Tanodbayan to file their counter-affidavits, which they
did on September 30, 1986.
In a resolution dated October 30, 1987, the Tanodbayan found a prima facie
case against petitioners and accordingly recommended the filing of an
Information against them for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act (RA 3019).4
On November 27, 1987, petitioners promptly filed a Motion for
Reinvestigation.5 On March 21, 1988, they filed a Motion to Resolve their
Motion for Reinvestigation.6
Without acting upon the Motion for Reinvestigation and Motion to Resolve
Motion for Reinvestigation, an Information was filed on November 5, 1990,
before the Sandiganbayan, which reads:
“That on or about August 5, 1986 or prior and subsequent thereto, in
Quezon City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, accused namely, Ricardo R. Castillo, Rodolfo M. Agdeppa
and Demetrio M. Cabison, Jr., all public officers being then COA Auditor VIII,
COA Auditor II and COA Auditor III, respectively, taking advantage of their
official positions, while in the performance or discharge of their
administrative official functions, with evident bad faith and manifest
partiality, conspiring, confederating and confabulating with each other, did
then and there willfully, unlawfully and fraudulently cause undue injury,
damage and prejudice to the Government of the Republic of the Philippines,
to wit: that two contracts were entered into by the NHA management with
two private contractors relative to the complete development of Phase V-A
Packages 3 & 4 which is being constructed by Sarmiento Construction Co.,
and likewise Phase IX Packages 7 & 7-A which is being constructed by the
Supra Construction Co., both constructions are located at the Tala Estate
Sites & Services, by causing to prepare, submit, issue and sign in the
different inventory reports/recommendation on various occasions that
Sarmiento Construction had an overpayment in the amount of P362,591.98
for Phase V-A Packages 3 & 4 but later on said accused changed their
inventory reports/recommendation and subsequently readjusted this as
overpayment on physical work thereby prejudicing the government on
account of accused’s constant changes/reversals in the inventory reports
prepared, signed and submitted by them; whereas in the second contract
with Supra Construction, accused issued an inventory report by stating
thereon that said contractor had a work deficiency in the amount of
P788,806.94 but refraining from taking appropriate action on account of
P1,873,091.40 withheld on Tala to pay a refund order on a Tondo contract
issued by the COA main office. The said accused raised the deficiency in the
amount of P855,281.50. Later on, another inventory report was issued and
prepared by a Tri-Partite Team Committee composed of COA, NHA and the
contractors stating a work deficiency in the amount of P352,121.40 only.
Despite previous inventory reports/recommendation by the accused citing
different amounts and another amount by the Tri-Partite Team Committee
said accused later stated that the final deficiencies of Supra Construction is
no longer P855,281.58 but was reduced only to P70,596.37, which
reductions in the contractors’ final deficiencies were not justified thereby
giving unwarranted benefits, preference and advantage to the above-
mentioned contractor to the damage and prejudice of the government in the
amount of P231,523.00 and to the Sarmiento Construction for inventoried
accomplishment were not duly credited by the said accused.”7
Trial on the merits thereafter ensued. After the prosecution rested its case,
petitioners filed a Demurrer to Evidence but the same was denied by the
Sandiganbayan in a Resolution dated December 11, 1992.8 Petitioners’
Motion for Reconsideration was likewise denied in a Resolution dated
January 20, 1993.9
Thereafter, petitioners filed a Motion to Dismiss10 dated February 15, 1993
citing lack of jurisdiction and violation of due process, but the same was
denied by the Sandiganbayan. Petitioners’ Motion for Reconsideration11 was
also denied.
Hence, this petition for certiorari and prohibition, raising the following
grounds:
The Honorable Respondent Sandiganbayan committed grave abuse of
discretion in not dismissing the Information notwithstanding that there was
a violation of petitioners’ constitutional rights of “due process” and “speedy
disposition of cases” and there was use of the strong arm of the law in an
oppressive and vindictive manner against the petitioners.
1. Unexplained and unjustified delay of three (3) years before an
Information is filed before the Honorable Respondent Sandiganbayan
counting from the date of the resolution of the Ombudsman recommending
the prosecution of the petitioners for violation of Rep. Act No. 3019 (or a
total of four [4] years from initial investigation up to filing of information);
2. Motion for Reinvestigation and Motion to Resolve the Motion for
Reinvestigation filed by the petitioners before the Office of the Honorable
Respondent Ombudsman were not acted upon;
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 44
3. No reason or explanation was made by the prosecution on the delay in
the filing of Information;
4. With no plausible explanation on hand, the petitioners are thus inclined to
reason out, or even suspect, that there is connection between such delay
and their past and contemporaneous official acts;
5. The lapse of three (3) years or a total of four (4) years from start of
investigation up to filing of Information may result in the destruction of
affirmative evidence tending to establish the innocence of the petitioners
and that the passage of time may have produced an unfavorable effect on
their defense;
6. Violation of constitutional rights divests the court of jurisdiction;
7. Lack of jurisdiction of the court may be raised at any time;
8. Criminal prosecution may be enjoined in order to afford adequate
protection to constitutional rights and to prevent the use of the strong arm
of the law in an oppressive and vindictive manner;
9. Subject of instant petition are the Orders of the Honorable Respondent
Sandiganbayan denying the Motion to Dismiss of petitioners for violation of
their constitutional rights and the use against them of the strong arm of the
law in an oppressive and vindictive manner.
Petitioners submit that the Ombudsman oppressed and discriminated against
them by not issuing any notice, reply or order denying their Motion for
Reinvestigation as well as their Motion to Resolve their Motion for
Reconsideration. They argue that the Ombudsman should have granted
outright their Motion for Reinvestigation in view of the ruling in Zaldivar v.
Sandiganbayan12 wherein this Court held, thus:
Under the 1987 Constitution, the Ombudsman (as distinguished from the
incumbent Tanodbayan) is charged with the duty to:
“Investigate on its own, or on complaint by any person, any act or omission
of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.” (citation omitted)
x x x      x x x      x x x
Now then, inasmuch as the aforementioned duty is given to the
Ombudsman, the incumbent Tanodbayan (called Special Prosecutor under
the 1987 Constitution and who is supposed to retain the powers and duties
NOT GIVEN to the Ombudsman) is clearly without authority to conduct
preliminary investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman. This right to do so
was lost effective February 2, 1987. From that time, he has been divested of
such authority.
Petitioners’ contention is misleading. In the aforecited case, this Court
clearly held that the authority of the Tanodbayan to conduct preliminary
investigations and to direct the filing of criminal cases was lost effective
February 2, 1987. The inference, therefore, of such holding is that the
Tanodbayan had such authority prior to February 2, 1987. In this case, the
Tanodbayan issued petitioners a subpoena on September 22, 1986 directing
them to file their counter-affidavits which the latter complied with on
September 30, 1986. In short, the preliminary investigation was conducted
by the Tanodbayan before he lost his authority to do so.
Hence, there was no need for the Ombudsman to conduct another
preliminary investigation as the one conducted by the former Tanodbayan
was valid and legal. Presumably, the new Ombudsman recognized the
results of the preliminary investigation conducted by the then Tanodbayan
and adopted the conclusions reached therein when he ordered the filing of
an Information against petitioners.
Consequently, there was no need for the Ombudsman to act on the
petitioners’ Motion for Reinvestigation. As stated, there was no need for the
Ombudsman to conduct another preliminary investigation.
Petitioners also submit that they were deprived of their constitutional right
to a speedy trial by reason of the delay in the filing of the Information by
the Ombudsman. They contend that the Sandiganbayan abused its
discretion in not dismissing the Information filed against them on the ground
that “there was unexplained and unjustified delay of more than three (3)
years before an information was filed against them from the filing of the
complaint on August 25, 1986 up to the filing of the Information on
November 5, 1990.” In fine, they point out that considering that the
preliminary investigation was concluded as early as October 30, 1987, the
first Ombudsman constituted under the 1987 Constitution should have filed
the Information as soon as he was appointed on June 6, 1988. Instead, it
took more than two years and 3,386 cases before Criminal Case No. 16240
was filed against them on November 5, 1990. In other words, petitioners
argue that since the Resolution of the Ombudsman recommending the filing
of the Information was issued on October 30, 1987, then the Information
should have been filed immediately thereafter, considering that even before
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 45
the promulgation of the Zaldivar case on April 27, 1988, thousands of
Informations had been filed.13
Petitioners’ contention is without merit.
In Cojuangco, Jr. v. Sandiganbayan,14 this Court has held that the
constitutional guarantee set forth in Section 16, Article III of the 1987
Constitution,15 of “(t)he right to a speedy disposition of a case, like the right
to speedy trial, is deemed violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays.” “x x x (T)he concept of
speedy disposition of cases is a relative term and must necessarily be a
flexible concept. Hence, the doctrinal rule is that in the determination of
whether that right has been violated, the factors that may be considered
and balanced are the length of delay, the reason for such delay and the
assertion or failure to assert such right by the accused, and the prejudice
caused by the delay.”16
As pointed out by petitioners, the complaint was filed before the
Tanodbayan on August 25, 1986. On October 30, 1987, a Resolution was
issued finding a prima facie case against petitioners and recommending the
filing of an Information with the Sandiganbayan. However, it was only on
November 5, 1990 when the Information was filed. Admittedly, it took three
(3) years for the Ombudsman to file the Information against petitioners from
the date of the Resolution recommending the filing thereof.
In explaining the delay in the filing of the Information, however, the Office
of the Solicitor General averred, as follows:
It will be noted that the normal operations of the Office of the Special
Prosecutor was affected by the Decision of this Honorable Court in Zaldivar
v. Sandiganbayan and Zaldivar v. Gonzalez, 160 SCRA 843 dated April 27,
1988, where it was ruled that the incumbent Tanodbayan lost his right to
conduct preliminary investigation and to direct the filing of criminal cases
with the Sandiganbayan effective February 2, 1987. As a result, complaints
(including that involved in the present petition), resolutions and other legal
papers awaiting action during that period remained pending the
appointment of an Ombudsman.
When the Ombudsman was appointed in 1988, it took some time still before
his Office could become fully constituted and operational. Because of the
unavoidable delay caused by the aforementioned circumstances, the
corresponding Information in the criminal case involved was filed and
approved only in 1990.
Prescinding from the foregoing, this Court finds no violation of petitioners’
right to a speedy disposition of their case. The delay was not vexatious,
capricious, nor oppressive, considering the factual milieu of this case,
namely the structural reorganizations and procedural changes brought about
by frequent amendments of procedural laws in the initial stages of this case.
The complaint was filed on August 25, 1986. On October 30, 1987, the
Ombudsman issued a Resolution finding a prima facie case and
recommending the filing of an Information. Meanwhile, on April 27, 1988,
the Zaldivar case was promulgated holding that the Tanodbayan lost his
authority to conduct preliminary investigations and to direct the filing of
Informations with the Sandiganbayan effective February 2, 1987. Then on
November 5, 1990, the Information against petitioners was filed.
In the case Binay v. Sandiganbayan and Magsaysay v. Sandiganbayan,17
this Court has held that:
A mere mathematical reckoning of the time involved, therefore, would not
be sufficient. In the application of the constitutional guarantee of the right to
speedy disposition of cases, particular regard must also be taken of the facts
and circumstances peculiar to each case.
In Alvizo v. Sandiganbayan,18 this Court has reiterated that it has taken
judicial cognizance of the frequent amendments of procedural laws by
presidential decrees, the structural reorganizations in existing prosecutorial
agencies and the creation of new ones by executive fiat, resulting in
changes of personnel, preliminary jurisdiction, functions and powers of
prosecuting agencies.
In addition, it is clearly apparent from the figures cited by petitioners that
the Sandiganbayan was burdened with a heavy caseload. Parenthetically,
this Court has taken judicial cognizance of the fact that the ever increasing
caseload of courts has affected the speedy disposition of cases pending
before the Sandiganbayan.19
While petitioners certainly have the right to a speedy disposition of their
case, the structural reorganization of the prosecutorial agencies, the
procedural changes brought about by the Zaldivar case as well as the
Sandiganbayan’s heavy caseload certainly are valid reasons for the delay in
the disposition of petitioners’ case. For those reasons, the delay certainly
cannot be considered as vexatious, capricious and oppressive. Neither is it
unreasonable nor inordinate.
WHEREFORE, in view of the foregoing, the instant petition is DENIED and
the two Orders dated February 18, 1993 and March 8, 1993 of the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 46
Sandiganbayan’s Second Division in Criminal Case No. 16240 are AFFIRMED.
The Sandiganbayan is DIRECTED to proceed with dispatch in the disposition
of this case.
No costs.
SO ORDERED.
     Davide, Jr. (C.J., Chairman), Puno and Kapunan, JJ., concur.
     Pardo, J., On official business abroad.
Petition denied, orders affirmed.
Note.—The Constitution guarantees the right of persons against
unreasonable delay in the disposition of cases before all judicial, quasi-
judicial or administrative bodies. (Matias vs. Plan, 293 SCRA 532 [1998])
——o0o—— Castillo vs. Sandiganbayan, 328 SCRA 69, G.R. No. 109271
March 14, 2000
No. L-30104. July 25, 1973.
HON. GREGORIO N. GARCIA, Judge of the City Court of Manila, and
FRANCISCO LORENZANA, petitioners, vs. HON. FELIX DOMINGO,
Judge of the Court of First Instance of Manila, EDGARDO CALO and
SIMEON CARBONNEL, respondents.
Constitutional law; Legal history of right to a public trial.—The 1935
Constitution which was in force at the time of the antecedents of this
petition explicitly enumerated the right to a public trial to which an accused
was entitled. So it is, as likewise made clear, under the present dispensation.
As a matter of fact, that was one constitutional provision that needed only a
single, terse summation from the Chairman of the Committee on the Bill of
Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. x x x It
would have been surprising if its proposed inclusion in the Bill of Rights had
provoked any discussion, much less a debate. It was merely a reiteration of
what appeared in the Philippine Autonomy Act of 1916, popularly known as
the Jones Law. Earlier, such a right found expression in the Philippine Bill of
1902, likewise an organic act of the then government of this country as an
unincorporated territory of the United States. Historically, as was pointed out
by Justice Black, in the leading case of In re Oliver: "This nation's accepted
practice of guaranteeing a public trial to an accused has its roots in (the)
English common law heritage." He then observed that the exact date of its
origin is obscure,"but it likely evolved long before the settlement of (the
United States) as an accompaniment of the ancient institution of jury trial."
It was then noted by him that "there. "the guarantee to an accused of the
right to a public trial first appeared in a state constitution in 1776" Later it
was embodied in the Sixth Amendment of the Federal Constitution ratified in
1791. He then conclude his historical survey thus: "Today almost without
exception every state by constitution, statute, or judicial decision, that all
requires criminal trials be open to the public."
Same; What public trial means.—The trial must be public. It possesses that
character when anyone interested in observing the manner a judge conducts
the proceedings in his courtroom may do so. There is to be no ban on such
attendance. His being a stranger to the litigants is of no moment. No
relationship to the parties need be shown. The thought lies behind this
safeguard is the belief that thereby the accused is afforded further
protection, that his trial is likely to be conducted with regularity and not
tainted with any impropriety. x x x There is the well recognized exception
though that warrants the exclusion of the public where the evidence may be
characterized as "offensive to decency or public morals."
Same; When hearings held inside judge's chambers not violative of right to
public trial.—What did occasion difficulty in this suit was that for the
convenience of the parties, and of the.city court Judge, it was in the latter's
air-conditioned chambers that the trial was held. Did that suffice to vitiate
the proceedings as violative of this right?
The answer must be in the negative. There is now showing that the public
was thereby excluded. It is to be admitted that the size of the room allotted
the Judge would reduce the number of those who could be present. Such a
fact though is not indicative of any transgression of this right. Courtrooms
are not of uniform dimensions. Some are smaller than others. Moreover, as
admitted by Justice Black in his masterly in In re Oliver opinion, it suffices to
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 47
satisfy the requirement of a trial being public if the accused could "have his
friends, relatives and counsel present, no matter with what offense he may
be charged." Then, too, reference may also be made to the undisputed fact
that at least fourteen hearings had been held in chambers of the city court
Judge, without objection on the part of respondent policemen.
Same; Criminal procedure; Lack of intervention by fiscal in trial of criminal
case, effect of.—No jurisdictional error was incurred by the city court judge
where an assistant fiscal abdicated control over the prosecution. As was so
emphatically declared by Justice J.B.L. Reyes in Cariaga v. Justo-Guerrero:
"The case below was commenced and prosecuted without the intervention,
mediation or participation of the fiscal or any of his deputies. This,
notwithstanding, the jurisdiction of the court was not affected x x x but the
court should have cited the public prosecutor to intervene x x x". Garcia vs.
Domingo, 52 SCRA 143, No. L-30104 July 25, 1973
FERNANDO, J.:
The pivotal question in this petition for certiorari and prohibition, one
which thus far has remained unresolved, is the meaning to be
accorded the constitutional right to public trial.1 More specifically, did
respondent Judge commit a grave abuse of discretion in stigmatizing
as violative of such a guarantee the holding of the trial of the other
respondents2 inside the chambers of city court Judge Gregorio Garcia
named as the petitioner.3 That was done in the order now impugned
in this suit, although such a procedure had been agreed to
beforehand by the other respondents as defendants, the hearings
have been thus conducted on fourteen separate occasions without
objection on their part, and without an iota of evidence to
substantiate any claim as to any other person so minded being
excluded from the premises. It is thus evident that what took place
in the chambers of the city court judge was devoid of haste or
intentional secrecy. For reasons to be more fully explained in the
light of the facts ascertained — the unique aspect of this case having
arisen from what turned out to be an unseemly altercation, force
likewise being employed, due to the mode in which the arrest of
private petitioner for a traffic violation was sought to be effected by
the two respondent policemen thus resulting in charges and counter-
charges with eight criminal cases being tried jointly by city court
Judge in the above manner — we rule that there was no
transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City
Court of Manila presided over by petitioner Judge, there were
commenced, by appropriate informations all dated January 16, 1968,
eight (8) criminal actions against respondent Edgardo Calo, and
Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows:
a. Against Edgardo Calo  (on complaint of Francisco Lorenzana) (1)
Criminal Case No. F-109192, also for slight physical injuries; (2)
Criminal Case No. F-109192, alsofor slight physical injuries; and (3)
Criminal Case No. F-109193, for maltreatment; b. Against Simeon
Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment; (2)
Criminal Case No. F-109196, for slight physical injuries; and (3)
Criminal Case No. F-109198, for light threats; (c) Against Francisco
Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case
No. F-109201, for violation of Sec. 887 of the Revised Ordinances of
Manila (resisting an officer); and (2) Criminal Case No. F-109200, for
slander."4The above was followed by this recital: "The trial of the
aforementioned cases was jointly held on March 4, 1968, March 18,
1968, March 23, 1968, March 30, 1968, April 17, 1968, April 20,
1968, May 4,1968, May 11, 1968, June 1, 1968, June 15, 1968, June
22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All
the fourteen (14) trial dates — except March 4 and 18, and April 17,
1968 — fell on a Saturday. This was arranged by the parties and the
Court upon the insistence of respondents Calo and Carbonnel who,
as police officers under suspension because of the cases, desired the
same to be terminated as soon as possible and as there were many
cases scheduled for trial on the usual criminal trial days (Monday,
Wednesday and Friday), Saturday was agreed upon as the invariable
trial day for said eight (8) criminal cases."5 Also this: "The trial of the
cases in question was held, with the conformity of the accused and
their counsel, in the chambers of Judge Garcia." 6 Then came these
allegations in the petition: "During all the fourteen (14) days of trial,
spanning a period of several months (from March to August, 1968),
the accused were at all times represented by their respective
counsel, who acted not only in defense of their clients, but as
prosecutors of the accusations filed at their clients' instance. There
was only one (1) day when Atty. Consengco, representing
respondent Calo and Carbonnel, was absent. This was on April 20,
1968. But at the insistence of Pat. Carbonnel, the trial proceeded,
and said respondent cross-examined one of the witnesses presented
by the adverse party. In any case, no pretense has been made by
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 48
the respondents that this constituted an irregularity correctible
on certiorari. At the conclusion of the hearings the accused, thru
counsel, asked for and were granted time to submit memoranda.
Respondents Calo and Carbonnel, thru counsel, Atty. Rafael
Consengco, submitted a 14-page memorandum with not less than 35
citations of relevant portions of the transcript of stenographic notes
in support of their prayer for exoneration, and conviction of
petitioner Lorenzana in respect of their countercharges against the
latter. It is worthy of note that up to this late date, said respondents
Calo and Carbonnel had not objected to — or pointed out — any
supposed irregularity in the proceedings thus far ; the memorandum
submitted in their behalf is confined to a discussion of the evidence
adduced in, and the merits of the cases."7 It was stated in the next
petition:
"The promulgation of judgment was first scheduled on September
23, 1968. This was postponed to September 28, 1968 at the instance
of Atty. Rafael Consengco, as counsel respondents Calo and
Carbonnel, and again to October 1, 1968 at 11 o'clock in the
morning, this time at the instance of Atty. Consengco and Atty.
Francisco Koh who had, in the meantime, also entered his
appearance as counsel for respondents Calo and Carbonnel. The
applications for postponement were not grounded upon any
supposed defect or irregularity of the proceedings."8
Mention was then made of when a petition for certiorari was filed
with respondent Judge: "Early in the morning of October 1, 1968,
Edgardo Calo and Simeon Carbonnel, thru their counsel, Atty. Rafael
S. Consengco, filed with the Court of First Instance a petition
for certiorari and prohibition, with application for preliminary
prohibitory and mandatory injunction ... [alleging jurisdictional
defects]." 9 Respondent Judge acting on such petition forthwith
issued a restraining order thus causing the deferment of the
promulgation of the judgment. After proceedings duly had, there
was an order from him "declaring that 'the constitutional and
statutory rights of the accused' had been violated, adversely
affecting their 'right to a free and impartial trial' [noting] 'that the
trial of these cases lasting several weeks held exclusively in
chambers and not in the court room open the public';" and ordering
the city court Judge, now petitioner, "to desist from reading or
causing to be read or promulgated the decisions he may have
rendered already in the criminal cases (in question) ... pending in his
Court, until further orders of this Court.'" 10
A motion for reconsideration proving unavailing, petition on January
28, 1969, elevated the matter to this Tribunal by means of the
present suit for certiorari and prohibition. In its resolution of
February 3, 1969, respondents were required to answer, with a
preliminary injunction likewise being issued. As was to be expected
the answer filed by respondent Judge on March 11, 1969 and that by
the other respondents on March 19, 1969 did attempt to justify the
validity of the finding that there was a failure to respect the right to
a public trial of accused persons. Neither in such pleadings nor in the
memorandum filed, although the diligence displayed by counsel was
quite evident, was there any persuasive showing of a violation of
constitutional guarantee of a public trial, the basic issue to be
resolved. Rather it was the mode of approach followed by counsel
Andres R. Narvasa for petitioners that did manifest a deeper
understanding of its implications and ramifications. Accordingly, as
previously stated, it is for us to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the
antecedents of this petition, as set forth at the outset, explicitly
enumerated the right to a public trial to which an accused was
entitled. So it is, as likewise made clear, under present dispensation.
As a matter of fact, that was one constitutional provision that
needed only a single, terse summation from the Chairman of the
Committee on the Bill of Rights, Delegate, later Justice, Jose P.
Laurel, to gain acceptance. As was stressed by him: "Trial should
also be public in order to offset any danger of conducting it in an
illegal and unjust manner." 11 It would have been surprising if its
proposed inclusion in the Bill of Rights had provoked any discussion,
much less a debate. It was merely a reiteration what appeared in the
Philippine Autonomy Act of 1916, popularly known as the Jones
Law. 12 Earlier, such a right found expression in the Philippine Bill of
1902, likewise an organic act of the then government of this country
as an unincorporated territory of the United States. 13 Historically as
was pointed out by Justice Black, speaking for the United States
Supreme Court in the leading case of In re Oliver: 14 "This nation's
accepted practice of guaranteeing a public trial to an accused has its
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 49
roots in [the] English common law heritage. 15 He then observed that
the exact date of its origin is obscure, "but it likely evolved long
before the settlement of the [United States] as an accompaniment of
the ancient institution of jury trial." 16 It was then noted by him that
there, "the guarantee to an accused of the right to a public trial
appeared in a state constitution in 1776." 17 Later it was embodied in
the Sixth Amendment of the Federal Constitution ratified in
1791. 18 He could conclude his historical survey "Today almost
without exception every state by constitution, statute, or judicial
decision, requires that all criminal trials be open to the
public." 19 Such is the venerable, historical lineage of the right to a
public trial.
2. The crucial question of the meaning to be attached this provision
remains. The Constitution guarantees an accused the right to a
public trial. What does it signify? Offhand it does seem fairly obvious
that here is an instance where language is to be given a literal
application. There is no ambiguity in the words employed. The trial
must be public. It possesses that character when anyone interested
in observing the manner a judge conducts the proceedings in his
courtroom may do so. There is to be no ban on such attendance. His
being a stranger to the litigants is of no moment. No relationship to
the parties need be shown. The thought that lies behind this
safeguard is the belief that thereby the accused is afforded further
protection, that his trial is likely to be conducted with regularity and
not tainted with any impropriety. It is not amiss to recall that
Delegate Laurel in his terse summation the importance of this right
singled out its being a deterrence to arbitrariness. It is thus
understandable why such a right is deemed embraced in procedural
due process. 20 Where a trial takes place, as is quite usual, in the
courtroom and a calendar of what cases are to be heard is posted,
no problem arises. It the usual course of events that individuals
desirous of being present are free to do so. There is the well
recognized exception though that warrants the exclusion of the
public where the evidence may be characterized as "offensive to
decency or public morals." 21
What did occasion difficulty in this suit was that for the convenience
of the parties, and of the city court Judge, it was in the latter's air-
conditioned chambers that the trial was held. Did that suffice to
investigate the proceedings as violative of this right? The answer
must be in the negative. There is no showing that the public was
thereby excluded. It is to be admitted that the size of the room
allotted the Judge would reduce the number of those who could be
our present. Such a fact though is not indicative of any transgression
of this right. Courtrooms are not of uniform dimensions. Some are
smaller than others. Moreover, as admitted by Justice Black in his
masterly In re Oliver opinion, it suffices to satisfy the requirement of
a trial being public if the accused could "have his friends, relatives
and counsel present, no matter with what offense he may be
charged." 22
Then, too, reference may also be made to the undisputed fact at
least fourteen hearings had been held in chambers of the city court
Judge, without objection on the part of respondent policemen. What
was said by former Chief Justice Moran should erase any doubt as to
the weight to be accorded, more appropriately the lack of weight, to
any such objection raised. Thus: "In one case, the trial of the
accused was held in Bilibid prison. The accused, invoking his right to
a public trial, assigned the procedure thus taken as error. The
Supreme Court held that as it affirmatively appears on the record
that the accused offered no objection to the trial of his case in the
place where it was held, his right is deemed waived." 23 The decision
referred to, United States v. Mercado, 24 was handed down sixty-
eight years ago in 1905.
It does seem that the challenged order of respondent is far from
being invulnerable.
3. That is all that need be said as to the obvious merit of this
petition. One other objection to the conduct of the proceedings by
the city court Judge may be briefly disposed of. Respondent Judge
would seek to lend support to an order at war with obvious meaning
of a constitutional provision by harping on the alleged abdication by
an assistant fiscal of his control over the prosecution. Again here
there was a failure to abide by settled law. If any party could
complain at all, it is the People of the Philippines for whom the fiscal
speaks and acts. The accused cannot in law be termed an offended
party for such an alleged failure to comply with official duty.
Moreover, even assuming that respondent policemen could be heard
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 50

to raise such a grievance, respondent Judge ought to have been
aware that thereby no jurisdictional defect was incurred by the city
court Judge. As was so emphatically declared by Justice J.B.L. Reyes
in Cariaga v. Justo-Guerrero: 25 "The case below was commenced
and prosecuted without the intervention, mediation or participation
of the fiscal or any of his deputies. This, notwithstanding, the
jurisdiction of the court was not affected ... but the court should
have cited the public prosecutor to intervene ... ." 26
Judge or any one acting in his place to desist from any further action
in Criminal Case No. 74830 of the Court of First Instance of Manila
other than that of dismissing the same. The preliminary writ of
injunction issued by this Court in its resolution of February 3, 1969
against the actuation of respondent Judge is made permanent. With
costs against respondent policemen Edgardo Calo and Simeon
Carbonnel.

4. There is much to be said of course for the concern displayed by

respondent Judge to assure the reality as against the mere
possibility of a trial being truly public. If it were otherwise, such a
right could be reduced to a barren form of words. To the extent then
that the conclusion reached by him was motivated by an
apprehension that there was an evasion of a constitutional
command, he certainly lived up to what is expected of a man of the
robe. Further reflection ought to have convinced him though that
such a fear was unjustified. An objective appraisal of conditions in
municipal or city courts would have gone far in dispelling such
misgivings. The crowded daily calendar, the nature of the cases
handled, civil as well as criminal, the relaxed attitude on procedural
rules not being strictly adhered to all make for a less tense
atmosphere. As a result the attendance of the general public is much
more in evidence; nor is its presence unwelcome. When it is
remembered further that the occupants of such courts are not
chosen primarily for their legal acumen, but taken from that portion
of the bar more considerably attuned to the pulse of public life, it is
not to be rationally expected that an accused would be denied
whatever solace and comfort may come from the knowledge that a
judge, with the eyes of the alert court alert to his demeanor and his
rulings, would run the risk of being unjust, unfair, or arbitrary. Nor
does it change matters, just because, as did happen here, it was in
the air-conditioned chambers of a city court judge rather than in the
usual place that the trial took place.

WHEREFORE, the writ of certiorari prayed for is granted nullifying,

setting aside, and declaring bereft of any legal force or effect the
order of respondent Judge Felix Domingo November 29, 1968 for
being issued with grave abuse of discretion. The writ of prohibition
sought by petitioner is likewise granted, commanding respondent
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 51
No. L-45667. June 20, 1977.*
MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA, Judge
of the Court of First Instance of Cebu (Branch VI) and HON.
ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I),
respondents.
Constitutional law; Procedural due process; Arraignment; Arraignment an
indispensable means for bringing accused into court and informing him of
the nature and cause of the accusation against him.—The procedural due
process mandate of the Constitution requires that the accused be arraigned
so that he may be informed as to why he was indicted and what penal
offense he has to face, to be convicted only on a showing that his guilt is
shown beyond reasonable doubt with full opportunity to disprove the
evidence against him. Moreover, the sentence to be imposed in such a case
is to be in accordance with a valid law. x x x An arraignment thus becomes
indispensable as the means “for bringing the accused into court and
notifying him of the cause he is required to meet * * *.”
Same; Same; Same; Definition and purposes of arraignment.—It is at that
stage where in the mode and manner required by the Rules, an accused, for
the first time, is granted the opportunity to know the precise charge that
confronts him. It is imperative that he is thus made fully aware of possible
loss of freedom, even of his life, depending on the nature of the crime
imputed to him. At the very least then, he must be fully informed of why the
prosecuting arm of the state is mobilized against him. An arraignment serves
that purpose.
Same: Same; Right of accused to be heard by himself and counsel.—“In
criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little
avail if it does not include the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he may be
convicted not because he is guilty but because he does not know how to
establish his innocence.”
Same; Same; Trial of accused in absentia only after arraignment.—The
provision in the present Constitution allowing trial to be held in absentia is
unavailing. x x x Its language is clear and explicit. What is more, it is
mandatory. Thus: “However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustified.” x x x The indispensable
requisite for trial in absentia is that it should come “after arraignment.” The
express mention in the present Constitution of the need for such, a step
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 52
emphasizes its importance in the procedural scheme to accord an accused
due process.
Same; Same; Where appeal not considered as waiver of procedural defect;
Absence of arraignment may be involved at anytime.—The appeal itself is
tantamount to questioning those defects. In fact, the memorandum in
support of the appeal unmistakably raised as error the absence of petitioner
at the arraignment and cited jurisprudence, commentaries and the rules to
bolster his position. Specifically, the absence of an arraignment can be
invoked at anytime in view of the requirements of due process to ensure a
fair and impartial trial.
Borja vs. Mendoza, 77 SCRA 422, No. L-45667 June 20, 1977
FERNANDO, J.:
The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining
of the City of Cebu which was not remedied by respondent Judge Rafael T.
Mendoza of the Court of First Instance of Cebu in this certionrari proceeding
was the absence of an arrainment of petitioner Manuel Borja, who was
accused of slight physical injuries. This notwithstanding respondent Judge
Senining proceeded with the trial in abssentia and thereafter, in a decision
promulgated on August 18, 1976, found him guilty of such offense and
sentenced him to suffer imprisonment for a period of twenty days of arresto
menor. 1 Thereafter, an appeal was duly elevated to the Court of First
Instance of Cebu presided by respondent Judge Mendoza. 2 It was then
alleged that without any notice to petitioner and without requiring him to
submit his memorandum, a decision on the appealed case was rendered on
November 16, 1976 petitioner that the failure to arraign him is violative of
his constitutional right to procedural due process, 3 more specifically of his
right to be informed of the nature and cause of the accusation against him
and of his right to be heard by himself and counsel. 4 Ther was thus, at the
very least, a graveabuse of discretion. The Solicitor General, 5 when asked
to comment, agreed that the procedural defect was of such gravity as to
render void the decision of the City Court affirmed by the Court of First
Instance. The comment was considered as answer, with the case being
submitted for decision.
Respect for the constitutional rights of an accused as authoritatively
construed by this Court, duly taken note of in the comment of the Solicitor
General, thus calls for the grant of the writ of certiorari prayed for.
1. The plea of petitioner to nullify the proceedings had in the criminal
case against him finds support in the procedural due process mandate of the
Constitution. It requires that the accused be arraigned so that he may be
informed as to why he was indicted and what penal offense he has to face,
to be convicted only on a showing that his guilt is shown beyond reasonable
doubt with full opportunity to disprove the evidence against him. Moreover,
the sentence to be imposed in such a case is to be in accordance with a
valid law. 6 This Court, in People v. Castillo, 7 speaking through Justice De
Joya and following the language of the American Supreme Court, Identified
due process with the accused having "been heard in a court of competent
jurisdiction, and proceeded against under the orderly processes of law, and
only punished after inquiry and investigation, upon notice to him, with an
opportunity to be heard, and a judgment awarded with the authority of a
constitutional law, ..." 8 An arraignment thus becomes indispensable as the
means "for bringing the accused into court and notifying him of the cause he
is required to meet ... " 9 Its importance was stressed by Justice Moreland
as early as 1916 in the leading case of United States v. Binayoh. 10 He
pointed out that upon the accused being arraigned, "there is a duty laid by
the Code [now the Rules of Court] upon the court to inform [him] of certain
rights and to extend to him, on his demand, certain others. This duty is an
affirmative one which the court, on its own motion, must perform, unless
waived." 11 To emphasize its importance, he added: "No such duty,
however, is laid on the court with regard to the rights of the accused which
he may be entitled to exercise during the trial. Those are rights which he
must assert himself and the benefits of which he himself must demand. In
other words, in the arraignment the court must act of its own volition, ..." 12
In the terse and apt language of the Solicitor General: "Arraignment is an
indispensable requirement in any criminal prosecution." 13 Procedural due
process demands no less.
2. Nor is it only the due process guarantee that calls for the accused
being duly arraigned. As noted, it is at that stage where in the mode and
manner required by the Rules, an accused, for the first time, is granted the
opportunity to know the precise charge that confronts him. It is imperative
that he is thus made fully aware of Possible loss of freedom, even of his life,
depending on the nature of the crime imputed to him. At the very least then,
he must be fully informed of why the prosecuting arm of the state is
mobilized against him. An arraignment serves that purpose. Thereafter he is
no longer in the dark. It is true, the complaint or information may not be
worded with sufficient clarity. He would be in a much worse position though
if he does not even have such an opportunity to plead to the charge. With
his counsel by his side, he is thus in a position to enter his plea with full
knowledge of the consequences. He is not even required to do so
immediately. He may move to quash. What is thus evident is that an
arraignment assures that he be fully acquainted with the nature of the crime
imputed to him and the circumstances under which it is allegedly committed.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 53
It is thus a vital aspect of the constitutional rights guaranteed him. It is not
useless formality, much less an Idle ceremony.
3. An equally fatal defect in the proceeding had before respondent
Judge Senining was that notwithstanding its being conducted in the absence
of petitioner, he was convicted. It was shown that after one postponement
due to his failure to appear, the case was reset for hearing. When that date
came, December 14, 1973, without petitioner being present, although his
bondsmen were notified, respondent Judge, as set forth in the comment of
the Solicitor General, "allowed the prosecution to present its evidence
invoking Letter of Instruction No. 40. Only one witness testified, the
offended party herself, and three documents were offered in evidence after
which the prosecution rested its case. Thereupon, respondent City Court set
the promulgation of the decision on December 28, 1973." 14 It could then
conclude: :Verily the records clearly show that petitioner was not arraigned
at all and was not represented by counsel throughout the whole proceedings
in the respondent City Court." 15 It is indisputable then that there was a
denial of petitioner's constitutional right to be heard by himself and counsel.
As categorically affirmed by Justice Ozaeta for this Court in the leading case
of Abriol v. Homeres: 16 "It is the constitutional right of the accused to be
heard in his defense before sentence is pronounced on him." 17 He added
further that such "constitutional right is inviolate." 18 There is no doubt that
it could be waived, but here there was no such waiver, whether express or
implied. It suffices to refer to another leading case, People v. Holgado, 19
where the then Chief Justice Moran emphatically took note of the
importance of the right to counsel: "In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by counsel.
The right to be heard would be of little avail if it does not include the right to
be heard by counsel. Even the most intelligent or educated man may have
no skill in the science of the law, particularly in the rules of procedure, and,
without counsel, he may be convicted not because he is guilty but because
he does not know how to establish his innocence." 20 With the violation of
the constitutional right to be heard by himself and counsel being thus
manifest, it is easily understandable why the Solicitor General agreed with
petitioner that the sentence imposed on him should be set aside for being
null.
4. The provision in the present Constitution allowing trial to be held in
absentia is unavailing. It cannot justify the actuation of respondent Judge
Senining. Its language is clear and explicit. What is more, it is mandatory.
Thus: "However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustified." 21 As pointed out then by the Solicitor
General, the indispensable requisite for trial in absentia is that it should
come "after arraignment." The express mention in the present Constitution
of the need for such a step emphasizes its importance in the procedural
scheme to accord an accused due process. Without the accused having been
arraigned, it becomes academic to discuss the applicability of this exception
to the basic constitutional right that the accused should be heard by himself
and counsel.
5. Nor did the appeal to the Court of First Instance presided by
respondent Judge Mendoza possess any curative aspect. To quote anew
from the comment of the Solicitor General: "Respondent Court of First
Instance ... considered the appeal taken by the petitioner as waiver of the
defects in the proceedings in the respondent City Court. Precisely, the
appeal itself is tantamount to questioning those defects. In fact, the
Memorandum in support of the appeal unmistakably raised as error the
absence of petitioner at the arraignment and cited jurisprudence,
commentaries and the rules to bolster his position. Specifically, the absence
of an arraignment can be invoked at anytime in view of the requirements of
due process to ensure a fair and impartial trial." 22
WHEREFORE, the petition for certiorari is granted. The decision of
respondent Judge Romulo R. Senining dated December 28, 1973, finding the
accused guilty of the crime of slight physical injuries, is nullified and set
aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated
November 16, 1976, affirming the aforesaid decision of Judge Senining, is
nullified and set aside. The case is remanded to the City Court of Cebu for
the prosecution of the offense of slight physical injuries, with due respect
and observance of the provisions of the Rules of Court, starting with the
arraignment of petitioner.
Barredo, Antonio, Aquino and Fernandez, JJ, concur.
Concepcion Jr., J, is on leave.
C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 54

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALBERTO V.

SENERIS, As District Judge, Court of First Instance, Branch II,
Sixteenth Judicial District, Zamboanga City and PILAR ANGELES DE
PIMENTEL, respondents.

Constitutional Law; Criminal Procedure; Evidence; The right to cross-

examine a prosecution witness is a guaranteed right in the Constitution.—
The constitutional right of confrontation, which guarantees to the accused
the right to cross-examine the witnesses for the prosecution, is one of the
most basic rights of an accused person under our system of justice. It is a
fundamental right which is part of due process not only in criminal
proceedings but also in civil proceedings as well as in proceedings in
administrative tribunals with quasi-judicial powers (Savory Luncheonette vs.
Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1957].

Same; Same; Same; Right to cross-examine a witness may be waived

expressly or impliedly.—But while the right to confrontation and cross-
examination is a fundamental right, WE have ruled that the same can be
waived expressly or impliedly by conduct amounting to a renunciation of the
right of cross-examination (Savor Luncheonette vs. Lakas ng Manggagawang
Pilipino et al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906],
People vs. De la Cruz, 56 SCRA 84, 91 [1974]). The conduct of a party which
may be construed as an implied waiver of the right to cross-examire may
take various forms. But the common basic principles underlying the
application of the rule on implied waiver is that the party was given
opportunity to confront and cross-examine an opposing witness but failed to
take advantage of it for reasons attributable to himself alone. Thus, where a
party has had the opportunity to cross-examine a witness but failed to avail
himself of it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be received or
allowed to remain in the record.

Same; Same; Same; The right to cross-examine may be lost thru the fault of
the cross-examiner.—However, WE likewise therein (64 SCRA 610)
emphasized that where the right to cross-examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 55
examination is not and cannot be done or completed due to cause
attributable to the party offering the witness, the uncompleted testimony is
thereby rendered incompetent (p. 636).
Same; Same; Same; Where the prosecution witness was already partly
cross-examined, but prior to the next hearing he was shot dead while trying
to escape from jail, his testimony cannot be striken off the record.—As clear
as day the Lufthansa ruling therefore applies only if there is a finding that
the cause for non-completion of the cross-examination of a witness was
attributable to the very party offering the said witness. Consequently, the
same is inapplicable to the instant action as the cause for the non-
completion of the cross-examination of petitioner’s witness was a fortuitous
event as he was killed, as per the pleadings submitted in this action, by the
law enforcers (Integrated National Police Patrols) after his escape from
prison. As a matter of fact, respondent judge, in his questioned order, did
not lay any basis for the application of the Lufthansa ruling as he failed to
make any finding that the non-completion was due to petitioner, the party
offering the witness, whose testimony he declared as inadmissible in
evidence.
Same; Same; Same; Same.—It may be true that the escape of the said
witness and his consequent death may be attributable to the negligence of
petitioner’s agents; but such negligence may not bind the petitioner as to
prejudicially affect its cause and interest—the prosecution of criminal offense
—by reason of the generally accepted principle that the State is not bound
by the negligence or tortious acts of its agents. As the cause of non-
completion was, as aforesaid, beyond the control of the prosecution,
respondent judge’s questioned order cannot be sustained on the basis of the
Lufthansa ruling which, as aforestated, was principally anchored on the
finding that the cause of the non-completion of the cross-examination of the
therein witness was attributable to the very party offering him as a witness.
Criminal Procedure; Evidence; Where the cross-examination of a
government witness was deferred on motion of the accused and was
approved by the judge without objection by the fiscal, it is not correct to say
that the accused was at fault if the cross-testimony cannot be made further
because the witness died.—While it is true that her counsel did not
immediately start with his cross-examination of the deceased witness on
March 22, 1978, he did avail, however, of such right on the same day by
initially obtaining an opportunity to make preparations for an effective
exercise thereof considering the nature of the case—a capital one—and the
length of the direct examination; three sittings on three different dates or on
February 28, 1978, March 6, 1978 and March 22, 1978. Hence, there was no
waiver of her right of cross-examination. Moreover, the deferment of the
cross-examination of the witness requested by private respondent on March
22, 1978 was approved by respondent judge without any objection on the
part of petition (pp. 45, 46, 64, rec.). And on the date for the cross-
examination of the witness Mario Nemenio or on April 19, 1978, counsel for
private respondent failed to cross-examine the said witness not of his own
design but because said witness failed to appear on that date for the reason
that due to the oversight of the court’s personnel the subpoena for said
witness was not served on him at the San Ramon Prison and Penal Farm
(pp. 90, 108, rec.) And respondent judge had to re-set the hearing for the
cross-examination of the witness by the private respondent only to June 7,
1978 because of the fact that respondent judge took, with the approval of
the Supreme Court, his summer vacation the whole month of May, 1978.
Same; Same; Where a witness was already rigorously cross-examined on
the essential elements of the crime and what remained for further cross-
examination when the witness died was on the alleged remand received,
which is a mere aggravating circumstance in parricide the witness’ testimony
is admissible in evidence, except that relative to the alleged reward.—There
is merit in the contention of the petitioner that the questioned testimony of
its deceased witness is admissible in evidence because private respondent’s
counsel had already “x x x rigorously and extensively cross-examined
witness Mario Nemenio on all essential elements of the crime charged
(parricide), all of which have been testified upon by said witness in his direct
examination-in-chief and consequently, the cross-examination-in-chief, has
already been concluded.” The cross-examination was completed insofar as
the essential elements of the crime charge—parricide, fact of killing—is
concerned. What remained was merely the cross-examination regarding the
price or reward, which is not an element of parricide, but only an
aggravating circumstance (par. 11, Art. 14, Revised Penal Code).
Same; Same; Same.—Because the cross-examination made by the counsel
of private respondent of the deceased witness was extensive and already
covered the subject matter of his direct testimony as state witness relating
to the essential elements of the crime of parricide, and what remained for
further cross-examination is the matter of price or reward alleged paid by
private respondent for the commission of the crime, which is merely an
aggravating circumstance and does not affect the existence of the offense
charged, the respondent judge gravely abused his discretion in declaring as
entirely inadmissible the testimony of the state witness who died through no
fault of any of the parties before his cross-examination could be finished.
People vs. Seneris, 99 SCRA 92, No. L-48883 August 6, 1980
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 56
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for
a writ of preliminary injunction, spawned by the August 4, 1978 order of
respondent judge in Criminal Case No. 750 for parricide against therein
accused Pilar Angeles de Pimentel, hereinafter referred to as private
respondent, is the admissibility in evidence of the testimony of a prosecution
witness in the said criminal case who dies before completion of his cross-
examination. That issue is crucial to the fate of private respondent,
considering that the deceased prosecution witness "... is the most vital and
the only eyewitness available to the prosecution against respondent Pilar
Angeles de Pimentel for the commission of the gruesome crime of
parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was
then on official detail with the office of the City Fiscal, Zamboanga City, filed
with the Court of First Instance, Sixteenth Judicial District, Zamboanga City,
an amended information for parricide in Criminal Case No. 1742, charging
herein private respondent as principal by inducement, Mario Nemenio y
delos Santos and Salim Doe as principals by direct participation and Moises
Andaya y Julkanain, as accomplice, in the fatal stabbing on September 6,
1977 in Zamboanga City of Eduardo Pimentel y Orario, the lawful husband of
private respondent. The amended information reads:
That on or about September 6, 1977, in the City of Zamboanga, Philippines,
and within the jurisdiction of this Court, the above-named accused Pilar
Angeles de Pimentel, with deliberate intent to kill her husband, Eduardo
Pimentel y Orario, with whom she was united in lawful wedlock, did then
and there, willfully, unlawfully and feloniously, induce and offer a sum of
money as consideration or prize to said accused Mario Nemenio y delos
Santos and Salim Doe to kill her said lawfully wedded husband Eduardo
Pimentel y Orario, and because and on account of said promised
consideration or prize which was accepted, the said accused Mario Nemenio
y delos Santos and Salim Doe, did then and there, willfully and feloniously
assault, attack and stab with a knife with which they were conveniently
provided, the person of said Eduardo Pimentel y Orario, thereby inflicting
upon the latter mortal wound which directly caused his death; that the
above-named accused Moises Andaya y Julkanain although without having
participated directly in the commission of the offense above- described, took
part prior to its commission by then and there acting as the contact man in
the execution of their plot to kill said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved
and was granted a separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted
by his counsel de oficio, entered on arraignment a plea of guilty.
Respondent judge thereafter rendered judgment convicting accused Mario
Nemenio y delos Santos of murder — qualified by the circumstance of prize
and reward-and not of parricide as charged in the information; because he
"... had no relation whatsoever to the deceased Eduardo Pimentel ..." and
appreciating the mitigating circumstances of voluntary plea of guilty and lack
of instruction and education, imposed on him the indeterminate penalty of
eight (8) years of prision mayor as the minimum, to fourteen (14) years and
eight (8) months of reclusion temporal as the maximum; to indemnify the
heirs of the deceased Eduardo Pimentel the amount of P12,000.00 and to
pay one-fourth (¼) of the costs of the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y
delos Santos offered to testify against his co-accused, herein private
respondent, in her separate trial earlier granted by the respondent judge in
the same criminal case, now numbered 750. Allowed, he testified as
prosecution witness on February 28, March 6, and March 22, 1978 and as
summarized by the petitioner, his testimony on direct examination contained
in seventy-six (76) pages of transcripts of stenographic notes (pp. 21-44,
57-64, rec.), is to the effect "...that he and Salim Doe were hired by
respondent Pilar Angeles de Pimentel, for the consideration of P3,000.00 to
kill Eduardo Pimentel, husband of respondent Pilar Angeles de Pimentel, in
the evening of September 6, 1977, in the latter's residence in Zamboanga
City, and that it was respondent Pilar Angeles de Pimentel herself who
actually pointed out the victim Eduardo Pimentel to the witness, who then
stabbed the said victim to death...That he did not know the Identity of the
victim Eduardo Pimentel at the time of the stabbing in the evening of
September 6, 1977. He was guided solely by respondent Pilar Angeles de
Pimentel, who pointed out her victim spouse to him ..." (allegation No. 4,
petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct
examination of its witness Mario Nemenio y delos Santos, counsel for private
respondent moved for the holding in abeyance of the cross-examination of
the said prosecution witness until after he (counsel) shall have been
furnished with the transcripts of the stenographic notes of the direct
examination of said prosecution witness (p. 47, TSN, March 22, 1978, p. 64,
rec.); allegation No. 5, petition, p. 5, rec.). The same was granted by the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 57
respondent judge who ordered the resumption of the hearing on April 19,
1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear
because he was not served with a subpoena (p. 108, rec.). Consequently,
the hearing was reset for June 7, 1978 (ibid.)
On June 7, 1978, counsel for private respondent commenced his cross-
examination of prosecution witness Mario Nemenio y delos Santos, which
cross-examination however was not completed on that session for lack of
material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of the
parties today's hearing is hereby adjourned and to be resumed on July 3,
1978 at 8:30 o'clock in the morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in
fifty-three (53) pages of transcripts of stenographic notes (pp. 65-84, rec.)
had already "... touched on the conspiracy existing among Salim Doe,
witness Mario Nemenio and respondent Pilar Angeles de Pimentel to kill
Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening
of September 6, 1977, and also on the actual stabbing by witness Mario
Nemenio of the victim Eduardo Pimentel who was pointed out to the
witness-killer by his wife, respondent Pilar Angeles de Pimentel ..." (p. 7,
rec.). This is not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3,
1978 at 8:30 o'clock in the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead
by the Integrated National Police patrols on June 21, 1978 while allegedly
escaping from the San Ramon Prison and Penal Farm, Zamboanga City,
where he was then serving his sentence. Consequently, the completion of
his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense
for the striking out of the deceased witness's testimony, filed with the
respondent court a motion praying for a ruling on the admissibility of the
testimony of deceased witness Mario Nemenio y delos Santos.
On August 4, 1978, respondent judge issued an order declaring as
inadmissible the entire testimony of the deceased witness Mario Nemenio y
delos Santos on the principal ground "... that the defense was not able to
complete its cross-examination of said witness ...", relying on the case of
Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp.
610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978,
after considering private respondent's comment as well as those of the
Solicitor General and of the respondent judge who was required to file one.
On even date, WE likewise issued a temporary restraining order "... effective
immediately and until further orders from this Court enjoining respondent
District Judge from continuing with the trial of Criminal Case No. 750 (1742)
entitled People of the Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in
ruling as inadmissible the testimony of prosecution witness Mario Nemenio y
delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the
accused the right to cross-examine the witnesses for the prosecution, is one
of the most basic rights of an accused person under our system of justice. It
is a fundamental right which is part of due process not only in criminal
proceedings but also in civil proceedings as well as in proceedings in
administrative tribunals with quasi-judicial powers (Savory Luncheonette vs.
Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions
secured it, thus: "In all criminal prosecutions, the accused ... shall enjoy the
right ... to meet the witnesses face to face ..." (Section 19, Art. IV, Bill of
Rights, 1973 Constitution; Section 17, Art. III, 1935 Constitution). Echoing
the same guarantee, Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant shall have the right to
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 58
be confronted at the trial by, and to cross- examine the witnesses against
him. Constitutional confrontation requirements apply specifically to criminal
proceedings and have been held to have two purposes; first and primarily,
to secure the opportunity of cross-examination, and secondarily, to obtain
the benefit of the moral impact of the courtroom atmosphere as it affects
the witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures
that the witness will give his testimony under oath, thus deterring lying by
the threat of perjury charge; it forces the witness to submit to cross-
examination, a valuable instrument in exposing falsehood and bringing out
the truth; and it enables the court to observe the demeanor of the witness
and assess his credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a
fundamental right, WE have ruled that the same can be waived expressly or
implied by conduct amounting to a renunciation of the right of cross-
examination (Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino, et
al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela
Cruz, 56 SCRA 84, 91 [19741). The conduct of a party which may be
construed as a implied waiver of the right to cross-examine may take
various forms. But the common basic principles underlying the application of
the rule on implied waiver is that the party was given the opportunity to
confront and cross-examination an opposing witness but failed to take
advantage of it for reasons attributable to himself alone. Thus, where a
party has had the opportunity to cross-examine an opposing witness but
failed to avail himself of it, he necessarily forfeits the right to cross-examine
and the testimony given on direct examination of the witness will be
received or allowed to remain in the record (Savory Luncheonette vs. Lakas
ng Maggagawang Pilipino, et al., supra, citing Francisco, Revised Rules of
Court, Vol. on Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-
512 and Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done
or completed due to causes attributable to the party offering the witness, as
was the situation in the Lufthansa German Airlines case (64 SCRA 610
[1975]) relied upon by respondent judge, the uncompleted testimony is
thereby rendered incompetent and inadmissible in evidence. WE emphasized
in the said case that "[T]he right of a party to cross-examine the witness of
his adversary is invaluable as it is inviolable in civil cases, no less than the
right of the accused in criminal cases. The express recognition of such right
of the accused in the Constitution does not render the right of parties in civil
cases less constitutionally based, for it is an indispensable part of the due
process guaranteed by the fundamental law. Subject to appropriate
supervision by the judge in order to avoid unnecessary delays on account of
its being unduly protracted and to needed injunctions protective of the right
of the witness against self-incrimination and oppressive and unwarranted
harassment and embarrassment, a party is absolutely entitled to a full cross-
examination as prescribed in Section 8 of Rule 132 ... Until such cross-
examination has been finished, the testimony of the witness cannot be
considered as complete and may not, therefore be allowed to form part of
the evidence to be considered by the court in deciding the case" (p. 637).
However, WE likewise therein emphasized that where the right to cross
examine is lost wholly or in part through the fault of the cross-examiner,
then the testimony on direct examination may be taken into account; but
when cross-examination is not and cannot be done or completed due to
causes attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of
witness on the admissibility in evidence of his testimony on direct
examination has been extensively discussed thus: "As a general rule, the
testimony of a witness, given on direct examination, should be stricken
where there is not an adequate opportunity for cross-examination, as where
the witness by reason of his death, illness, or absence cannot be subjected
to cross-examination. Although the contrary has been held (Scott v. McCann,
24 A. 536, 76 Md. 47), the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate opportunity
for cross-examination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as
where the party against whom he testified is, through no fault of his own,
deprived of the right to cross-examine him by reason of his death
(Henderson v. Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls
County, State of Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed.
358), or as a result of the illness of the witness or absence, or a mistrial
ordered. The direct testimony of a witness who dies before conclusion of the
cross-examination can be stricken only insofar as not covered by the cross-
examination (Curtice v. West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099,
121 N.Y. 696), and absence of a witness is not enough to warrant striking
his testimony for failure to appear for further cross-examination where the
witness has already been sufficiently cross-examined (Lew Choy v. Lim Sing
216 P. 888, 125 Wash 631), or the matter on which further cross-
examination is sought is not in controversy (supra). It has been held that a
referee has no power to strike the examination of a witness on his failure to
appear for cross-examination where a good excuse is given (In re Crooks,
23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination
without fault upon his part, as in the case of the illness or death of a witness
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 59
after direct examination, it is generally held that he is entitled to have the
direct testimony stricken from the record. This doctrine rests on the common
law rule that no evidence should be admitted but what was or might be
under the examination of both parties, and that exparte statements are too
uncertain and unreliable to be considered in the investigation of
controverted facts (Wray vs. State, 154 Ala 36, 45 So 697; People vs.
Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski,
55 Del 304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831;
Citizens Bank & Trust Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It
has been held, however, that the trial court did not abuse its discretion in
refusing to discharge the jury where the state witness collapsed before
cross- examination was completed, it being shown that no motion to strike
the testimony was made, that it was not indicated what further information
was sought to be produced by further cross-examination, and that the
witness' testimony was largely cumulative (Banks vs, Commonwealth, 312
Ky 297, 227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such
circumstances that no responsibility of any sort can be attributed to either
the witness of his party, it seems harsh measure to strike out all that has
been obtained on the direct examination. Principle requires in strictness
nothing less. But the true solution would be to avoid any inflexible rule, and
to leave it to the trial judge to admit the direct examination so far as the
loss of cross-examination can be shown to him to be not in that instance a
material loss. Courts differ in their treatment of this difficult situation; except
that by general concession a cross-examination begun but unfinished sufices
if its purposes have been substantially accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa German Airlines
case cannot be sustained. To be sure, while the cross-examination of the
witness in the aforesaid Lufthansa case and that of the witness in the
present action were both uncompleted, the causes thereof were different in
that while in the present case it was the death of the witness, in the
Lufthansa case, it was the unjustified and unexplained failure of Lufthansa
to present its witness on the scheduled date for his cross-examination which
had already been preceded by several postponements initiated by Lufthansa
itself, thus depriving the other party the opportunity to complete the cross-
examination of said witness. Consequently, this Court therein correctly ruled
as inadmissible the testimony of the said witness on the principle that "...
when cross-examination is not and cannot be done or completed due to
causes attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent ..." (supra, at p. 636). As clear
as day, the Lufthansa ruling therefore applies only if there is a finding that
the cause for non-completion of the cross-examination of a witness was
attributable to the very party offering the said witness. Consequently, the
same is inapplicable to the instant action as the cause for the non-
completion of the cross-examination of petitioner's witness was a fortuitous
event as he was killed, as per the pleadings submitted in this action, by the
law enforcers (Integrated National Police Patrols) after his escape from
prison. As a matter of fact, respondent judge, in his questioned order, did
not lay any basis for the application of the Lufthansa ruling as he failed to
make any finding that the non-completion was due to petitioner, the party
offering the witness, whose testimony he declared as inadmissible in
evidence. A reading of the questioned order reveals that respondent judge
ruled as inadmissible said questioned testimony mainly because private
respondent can no longer finish her cross-examination; hence incomplete.
However, private respondent advanced in this action the cavalier theory that
the failure of her counsel to complete his cross-examination of petitioner's
witness was due to the fault of or was attributable to the petitioner, People
of the Philippines, because it was the very agents of State who killed its own
witness; hence, making the questioned testimony of petitioner's witness
inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding
nor any showing as the same is farfetched or inconceivable that the killing of
the witness of petitioner by its own agents was ill-motivated. The
prosecution did not order the shooting of the government witness. He was
shot while escaping from prison. It is petitioner's cause which will possibly
suffer from said death; not the cause of private respondent. It may be true
that the escape of the said witness and his consequent death may be
attributable to the negligence of petitioner's agents; but such negligence
may not bind the petitioner as to pre-judicially affect its cause and interest
— the prosecution of criminal offenses — by reason of the generally
accepted principle that the State is not bound by the negligence or tortious
acts of its agents. As the cause of non-completion was, as aforesaid, beyond
the control of the prosecution, respondent judge's questioned order cannot
be sustained on the basis of the Lufthansa ruling which, as aforestated, was
principally anchored on the finding that the cause of the non-completion of
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 60

the cross-examination of the therein witness was attributable to the very It appears, therefore, that the situation is one whereby the cause of non-
party offering him as a witness. completion of the cross-examination of the deceased witness was attributed
neither to the fault of petitioner nor the private respondent. Consequently,
2. On the other hand, WE find no merit in petitioner's contention that the admissibility or inadmissibility of the testimony of the said witness
the testimony of its deceased witness is admissible on the ground that cannot be resolved on the basis of the rule enunciated in the Lufthansa
private respondent had waived her right to cross-examine the witness and case.
that the cause of non-completion was attributable to said private
respondent. As correctly pointed out by private respondent and sustained by III
respondent judge, petitioner is not justified in attributing fault to her (private
respondent) and in contending that she is deemed to have partly lost There is merit in the contention of the petitioner that the questioned
already the right of cross-examination by not availing of the right to cross- testimony of its deceased witness is admissible in evidence because private
examine the witness Mario Nemenio on March 22, 1978 or right after his respondent's counsel had already "... rigorously and extensively cross-
direct examination was closed and delaying until the lapse of two and a half examined witness Mario Nemenio on all essential elements of the crime
(2½) months thereafter before making such cross-examination; because charged (parricide), all of which have been testified upon by said witness in
while it is true that her counsel did not immediately start with his cross- his direct examination-in-chief, and consequently, the cross-examination-in-
examination of the deceased witness on March 22, 1978, he did avail, chief, has already been concluded."
however, of such right on the same day by initially obtaining an opportunity
to make preparations for an effective exercise thereof considering the nature
The cross-examination was completed insofar as the essential elements of
of the case — a capital one — and the length of the direct examination;
the crime charged — parricide, fact of killing-is concerned. What remained
three sittings on three different dates or on February 28, 1978, March 6,
was merely the cross-examination regarding the price or reward, which is
1978 and March 22, 1978. Hence, there was no waiver of her right of cross-
not an element of parricide, but only an aggravating circumstance (par. 11,
examination. Moreover, the deferment of the cross-examination of the
Art. 14, Revised Penal Code).
witness requested by private respondent on March 22, 1978 was approved
by respondent judge without any objection on the part of petitioner (pp. 45,
46, 64, rec.). And on the date for the cross-examination of the witness Mario As elaborated by petitioner in its memorandum:
Nemenio or on April 19, 1978, counsel for private respondent failed to cross-
examine the said witness not of his own design but because said witness The crime charged in the case at bar is Parricide under Article 246 of the
failed to appear on that date for the reason that due to the oversight of the Revised Penal Code.
court's personnel the subpoena for said witness was not served on him at
the San Ramon Prison and Penal Farm (pp. 90, 108, rec.). And respondent
The elements of the crime of Parricide are that a person was killed; that the
judge had to re-set the hearing for the cross-examination of the witness by
killing was intentionally caused by the accused; and that the victim is a
the private respondent only to June 7, 1978 because of the fact that
parent or child, whether legitimate or illegitimate, or the lawful spouse, or
respondent judge took, with the approval of the Supreme Court, his summer
legitimate ascendant or descendant of the accused. Once these facts are
vacation the whole month of May, 1978.
established beyond reasonable doubt, conviction is warranted (See Aquino,
The Revised Penal Code, 1961 Ed., Vol. II, p. 1171).
It is thus apparent that no fault can be imputed to the private respondent
for the length of time that elapsed before her counsel was able to
The deceased Eduardo Pimentel has been sufficiently shown to be the lawful
commence his cross-examination of the witness. And private respondent's
husband of private respondent Pilar Pimentel by means of the marriage
counsel was not able to complete his cross-examination of the witness on
contract executed between them on May 18, 1971 ... marked as Exhibit 'R'
June 7, 1978 for lack of material time by reason of which and upon
for the prosecution ...
agreement of the parties the hearing was adjourned and ordered resumed
on July 3, 1978 (p. 84, rec.).
The cross-examination of witness Mario Nemenio by the counsel for private
respondent on June 7, 1978 touched on the conspiracy, and agreement,
existing among Salim Doe, witness Mario Nemenio and private respondent
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 61

Pilar Pimentel to kill Eduardo Pimentel, in the latter's residence in IN DECIDING THE CASE THE TESTIMONY OF THE DECEASED WITNESS
Zamboanga City in the evening of September 6, 1977, and also on the MARIO NEMENIO y DELOS SANTOS EXCLUDING ONLY THE PORTION
actual stabbing by witness Mario Nemenio of the victim Eduardo Pimentel THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE OF PRICE OR
who was pointed out to the witness-killer by his wife, the private respondent REWARD WHICH WAS NOT COVERED BY THE CROSS-EXAMINATION. NO
Pilar Pimentel herself... The matter of consideration or price of P3,000.00, COSTS.
which both the public and private respondents maintain was not touched in
the cross-examination of witness Mario Nemenio, is not an essential element Teehankee (Chairman), Guerrero, De Castro and Melencio-Herrera, JJ.,
of the crime of parricide. Price or consideration is merely an aggravating concur.
circumstance of the crime charged, not an essential element thereof. The
failure to touch the same in the cross-examination would not at all affect the
Fernandez, J., is on leave.
existence of the crime of parricide. Furthermore, there is no showing or even
the slightest indication that the witness or his testimony would be
discredited if he was cross-examined on the promised consideration. The
probability is rather very great that the witness would only have confirmed
the existence of the promised consideration were he cross-examined on the
same.

From the foregoing discussion, it is submitted that the rigorous and

searching cross-examination of witness Mario Nemenio on June 7, 1978,
practically concluded already the cross-examination-in-chief, or has already
substantially accomplished the purpose of the cross-examination, and
therefore, the failure to pursue the privilege of further cross-examination,
would not adversely affect the admissibility of the direct testimony of said
witness anymore (pp. 159162, rec.).
Private respondent did not dwell on the aforesaid points in her
memorandum.
Because the cross-examination made by the counsel of private respondent
of the deceased witness was extensive and already covered the subject
matter of his direct testimony as state witness relating to the essential
elements of the crime of parricide, and what remained for further cross-
examination is the matter of price or reward allegedly paid by private
respondent for the commission of the crime, which is merely an aggravating
circumstance and does not affect the existence of the offense charged, the
respondent judge gravely abused his discretion in declaring as entirely
inadmissible the testimony of the state witness who died through no fault of
any of the parties before his cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS
HEREBY SET ASIDE; THE RESTRAINING ORDER OF DECEMBER 4, 1978
ISSUED BY THIS COURT IS HEREBY LIFTED; AND RESPONDENT JUDGE OR
HIS SUCCESSOR IS ACCORDINGLY ORDERED TO PROCEED WITH THE
TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER
No. L-51513. May 15, 1984.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
Criminal Procedure; Abduction, a continuing offense.—The above questions
are easily answered. Abduction is a persistent and continuing offense. (U.S.
vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be “tried in the court of the
municipality or province wherein the offense was committed or any one of
the essential ingredients thereof took place.” (Rules of Court, Rule 110, Sec.
14[a].) The Municipal Court of Pulilan had jurisdiction because the abductors
and their captive passed Pulilan on their way from Plaridel to Talavera. And
the CFI of Bulacan (as well as the CFI of Nueva Ecija) had jurisdiction
because essential elements of the offense took place in Bulacan (and also in
Nueva Ecija).
Same; Jurisdiction; Jurisdiction vests in the court, not in a particular judge of
a multi-sala court.—We hold that Judge de Vega had the power to decide
the case. “Where a court of first instance is divided into several branches
each of the branches is not a court distinct and separate from the others.
Jurisdiction is vested in the court, not in the judges, so that when a
complaint or information is filed before one branch or judge, jurisdiction
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 62
does not attach to said branch of judge alone, to the exclusion of the others.
Trial may be had or proceedings may continue by and before another branch
or judge.” (Lumpay, et al. vs. Moscoso, 105 Phil. 968 [1959].)
Evidence; Testimony of fourteen-year old victim of abduction with rape
corroborated by a key eyewitness whose name was dropped from amended
information.—Fajardo testified, among other things, that he was given a lift
from the monument in Caloocan City to Nueva Ecija by Gorospe and
Bulanadi; that in Plaridel, between the market and the bridge, the two
forced Anastacia to go with them; that Anastacia was brought to his house
and later transferred to a nipa hut near an irrigation pump; that in the nipa
hut Anastacia was undressed by Gorospe; that Gorospe, Bulanadi and
Alvaran took turns in spending 20 to 30 minutes inside the hut with
Anastacia; and that he did not have sex with her. It can thus be seen that
Fajardo was a key witness. His testimony corroborated that of Anastacia in
material matters.
Criminal Procedure; Evidence; Judgment; Judgment is validly rendered even
if defense not yet through with cross-examination of key witness.—The trial
court committed no error in admitting the testimony of Fajardo although the
defense had not finished its cross-examination. An examination of the
transcript of Fajardo’s testimony shows that he was subjected to detailed
cross-examination on material points. In fact, the cross-examination was
lengthier than the direct examination.
Criminal Law; Evidence; Defense theory that complainant is a prostitute not
credible, as the latter is only 14 years old and still studying in school.—The
version of the appellants does not inspire belief because it appears to have
been contrived. The appellants portray Anastacia as wanton and unchaste
woman—a prostitute. But one’s credulity has to be unduly stretched in order
to buy the line that a girl of 14 years who was still going to school was a
prostitute who went far away from her home in order to peddle her body.
The appellant’s version is simply too crude to be convincing.
Same; Criminal Procedure; Penalty; Even if conspiracy exists, and victim was
raped by three men, the appellants cannot be found guilty of three rapes
where one of the three was dropped from the information.—The Solicitor
General states that Gerardo Fajardo, the discharged state witness, also
committed rape hence the appellants should each be found guilty of three
(3) rapes because in a conspiracy the act of one is the act of all. We cannot
agree in respect of the participation of Fajardo. Since Fajardo was dropped
from the complaint his guilt had not been established. However, We agree
with the Solicitor General’s observation “that a motor vehicle was used to
bring her [Anastacia de Jesus] from Plaridel, Bulacan, where she was first
deceived and drugged, and then taken to an isolated uninhabited place at a
nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva Ecija, where
she was abused, two (2) aggravating circumstances are present, namely use
of motor vehicle and uninhabited place (Art. 14, R.P.C.),” so that death is
the proper penalty. (Brief, pp. 14-15.) However, for lack of the necessary
number of votes the death penalty cannot be imposed. People vs. Gorospe,
129 SCRA 233, No.
APPEAL from the decision of the Court of First Instance of Bulacan. Br. 11.
De Vega, J.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Francisco S. Pagaduan, Sr. for accused-appellants.
ABAD SANTOS, J.:
In a verified complaint filed on October 8, 1974, with the Municipal Court of
Pulilan, Bulacan, ANASTACIA DE JESUS accused GERARDO FAJARDO,
RUFINO BULANADI and FELICIANO GOROSPE of the crime of forcible
abduction with rape. (Expediente p. 1.) The crime was said to have been
committed on September 30, 1974, starting in Plaridel, Bulacan, thru Pulilan,
and thence to Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan
received the complaint and conducted a preliminary investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and
Feliciano Gorospe were again named but Gerardo Fajardo was dropped and
OSCAR ALVARAN was named instead. The date when the crime was said to
have been committed was changed from September 30, 1974, to September
25, 1974. (Id., p. 41.)
Again Judge Granados conducted a preliminary investigation and on
November 18, 1974, he issued an order for the arrest of Bulanadi, Gorospe
and Alvaran and fixed their bail at P15,000.00 each. (Id., p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5,
1975, but on that day neither Bulanadi or Gorospe appeared for which
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 63
reason Judge Granados declared that they had waived their right thereto
and elevated the case to the Court of First Instance of Bulacan. (Id., p. 87.
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI
of Bulacan an information for forcible abduction with rape against Gorospe
and Bulanadi. It was docketed as Criminal Case No. 1293-M. (Id., p. 88.) But
on July 25, 1975, Fiscal Kliatchko filed an amended information which reads:
“That on or about the 25th day of September, 1974, in the municipality of
Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Feliciano Gorospe and Rufino Bulanadi,
together with one Oscar Alvaran who is still at large, conspiring and
confederating together and helping one another, did then and there wilfully,
unlawfully, and feloniously, by means of force, violence and intimidation,
and with lewd design abduct the complaining witness Anastacia de Jesus, an
unmarried woman, 14 years of age, by then and there taking and carrying
her to Talavera, Nueva Ecija, against her will and without her consent, and
upon arrival there, the said accused by means of violence, force and
intimidation have carnal knowledge of the said Anastacia de Jesus against
her will and consent.” (Id., p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15,
1975. The accused and their counsel de parte had long been notified that
the case was to be tried on that day but they did not appear so the former
were tried in absentia. After hearing part of the testimony of Anastacia de
Jesus, the complainant, Judge Valdellon was transferred to Metro Manila and
she was replaced by Judge Fidel P. Purisima who finished the trial. But
Judge Purisima issued an order on March 10, 1976, wherein he inhibited
himself from deciding the case. He said, “Considering that Judge Alfredo V.
Granados is a first cousin by affinity of the undersigned Presiding Judge and
if only to make sure that the decision to be rendered in this case shall be
above suspicion and considering further the gravity of the offense charged,
the undersigned Presiding Judge hereby inhibits himself from deciding this
case.” (Id., pp. 386-387.) So it was Judge Jesus R. de Vega who decided the
case and rendered the following judgment:
“PREMISES CONSIDERED, the Court finds both the herein accused Gorospe
and Bulanadi guilty beyond reasonable doubt of rape committed against
Anastacia de Jesus as charged in the information. Considering the legal
principle that each of the herein accused is responsible not only for the act
of rape committed personally by him but also for the rape committed by his
other co-accused on account of the finding of conspiracy or cooperation in
the commission of the said crime charged against them, the Court
accordingly sentences each of the herein accused Gorospe and Bulanadi to
suffer two (2) perpetual penalties of reclusion perpetua to be served in
accordance with Art. 70 of the Revised Penal Code, with all the accessory
penalty of the law.
“Both accused are further ordered to indemnify Anastacia de Jesus in the
amount of P40,000.00 for actual, exemplary and morel damages; and to pay
the costs.” (Id., p. 419.)
The case is now before Us on appeal.
The People’s version of the facts is as follows:
“Complainant Anastacia de Jesus, a 14 year-old girl at the time of the
incident, single, student at the Calumpit Institute, Bulacan, and resident of
Puñgo, Calumpit, Bulacan, was, at about 10:00 a.m., of September 25,
1974, at Plaridel, Bulacan, in front of the Caltex Station, intending to cross
the street to buy a book. She was looking for a book, entitled “Diwang
Guinto” (pp. 2-5, t.s.n., Dec. 15, 1975; pp. 17-18, t.s.n., March 10, 1976; p.
4, t.s.n., March 11, 1976). Two persons passed by, one of whom was
appellant Rufino Bulanadi, who waived a handkerchief across her face,
which affected her consciousness and she felt dizzy but felt that she was
being held and boarded into a motor vehicle (pp. 5-11, t.s.n., Dec. 15, 1975;
p. 18, t.s.n., March 10, 1976).
“Complainant regained her full consciousness at about 8:00 o’clock in the
evening of September 25, 1974, in a nipa hut near the irrigation pump, of
Gerardo Fajardo, at Calipahan, Talavera, Nueva Ecija. Inside she saw
appellants, Feliciano Gorospe, Rufino Bulanadi, and Gerardo Fajardo (pp. 11-
14, 17, 21, t.s.n., Dec. 15, 1975). They were arguing why she (complainant)
had to be taken by appellants Rufino Bulanadi and Feliciano Gorospe (p. 16,
t.s.n., Dec. 15, 1975).
“That evening, at the said nipa hut, complainant was forced to drink a
strange tasting royal soft drink by appellant Feliciano Gorospe and appellant
Rufino Bulanadi, who held her hands (pp. 21-23, t.s.n., Dec. 15, 1975). After
drinking the soft drink complainant lost consciousness. She woke up only the
next morning with aches and pains all over her body especially her private
part. She found herself naked. Appellants, Rufino Bulanadi and Feliciano
Gorospe, were there by her side standing when she woke up (pp. 23-26,
t.s.n., Dec. 15, 1975; p. 22, t.s.n., Jan. 12, 1976). Gerardo Fajardo was also
there. All the three of them were naked. Evidently, appellants and Gerardo
Fajardo sexually abused her (p. 27, t.s.n., Dec. 15, 1975; p. 15, t.s.n.,
March 10, 1976).
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 64
“Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine
(9) days in the hut, with appellants, and Gerardo Fajardo taking turns in
sexually abusing her during the night. During the day she was guarded by
Oscar Alvaran.
“After her nine-day ordeal, Gerardo Fajardo brought her to the house of
Cirilo Balanagay at Bancal, Talavera, Nueva Ecija (pp. 20-23, t.s.n., March
12, 1976). When Gerardo Fajardo left the house, Anastacia de Jesus related
to Cirilo Balanagay what the appellants and Fajardo did to her. Cirilo
Balanagay, therefore, wired Anastacia’s parents and then brought her to the
Talavera Municipal Building where she executed an affidavit about her
ordeal. She also told the PC of her harrowing experience (pp. 23-25, t.s.n.,
March 12, 1976).
“When complainant was brought home, her friends readily noticed that she
was not her usual self anymore as ‘she cannot answer and she just kept on
shouting and crying and trembling’, saying ‘keep away from me, have pity
on me.’ (pp. 14-15, t.s.n., Oct. 14, 1975).
“Complainant Anastacia de Jesus was physically examined on October 6,
1974, by Dra. Norma V. Gungon who issued a medical certificate on her
findings, as follows:
‘Patient examined with the presence of a ward Nurse. She is conscious,
coherent answers to questions intelligently. Physical Examination:
Breast—symetrical, conical in shape, areola pigmented.
Mons pubis—pubic hair scanty in amount.
Internal Examination:
Hymen—presence of healed lacerations, at 11, 5, 3 o’clock.
Vaginal introctus—admits 2 fingers w/ difficulty. Cervix—small, closed
SMEAR FOR SPERMATOZOA-NEGATIVE’ (Exh, G-1, p. 6, rec.)” (Brief, pp. 3-
6.)
The appellants make the following assignment of errors:
“I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE WHICH THE PROSECUTION ALLEGES TO HAVE BEEN
COMMITTED IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN THE
PROVINCE OF BULACAN.
“II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE OF THE
COURT OF FIRST INSTANCE OF BULACAN, BRANCH II ERRED IN
RENDERING THE DECISION APPEALED FROM WHEN HE HAS NO
AUTHORITY TO DO SO BECAUSE THIS CASE WAS ENTIRELY TRIED IN THE
COURT OF FIRST INSTANCE OF BULACAN, BRANCH I, PRESIDED OVER BY
HONORABLE JUDGE FIDEL P. PURISIMA.
“III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF
GERARDO FAJARDO WHOSE CROSS-EXAMINATION WAS NOT FINISHED
DUE TO HIS FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
ARREST.
“IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED FELICIANO
GOROSPE AND RUFINO BULANADI GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF RAPE.” (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the
complaint not filed in Plaridel, Bulacan or Talavera, Nueva Ecija but in
Pulilan, Bulacan? (2) Since the rape was committed in Talavera, why was
the case tried by the CFI of Bulacan and not by the CFI of Nueva Ecija?
The above questions are easily answered. Abduction is a persistent and
continuing offense. (U.S. vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be
“tried in the court of the municipality or province wherein the offense was
committed or any one of the essential ingredients thereof took place.” (Rules
of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had
jurisdiction because the abductors and their captive passed Pulilan on their
way from Plaridel to Talavera. And the CFI of Bulacan (as well as the CFI of
Nueva Ecija) had jurisdiction because essential elements of the offense took
place in Bulacan (and also in Nueva Ecija).
The second assignment of error asserts that Judge de Vega had no authority
to render the decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the
case also “ordered to have the same reraffled off and assigned to another
branch.” The case was presumably re-raffled to Judge de Vega who issued
an order on June 23, 1978, which states, inter alia:
“Considering the foregoing, and in order to be properly guided in the further
disposition of this case, and to obviate possible objections and criticisms
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 65
which may come from any or both parties in the final disposition thereof, the
Court resolves to require the parties to submit their respective written
comments within fifteen (15) days from receipt hereof on the propriety and
advisability of the decision in this case to be rendered by the Presiding
Judge of this Court; and to call a conference to hear further the views and
arguments of the parties on this question, which is hereby set on July 18,
1978, at 1:30 p.m. Let notices be sent accordingly to all parties concerned.”
(Expediente p. 390.)
Neither the comments nor the memorial of the conference are in the
expediente but on March 28, 1979, counsel for the accused filed a motion
stating:
“2. That the above promulgation was held in abeyance, and then the
accused received the order dated June 13, 1978 where the Court called the
parties to a conference on July 18, 1978;
3. That the parties appeared before this Court on July 18, 1978;
4. That up to the present a Decision in the above entitled case has not yet
been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable Court that the above
entitled case be resolved.” (Id., p. 401.) And on June 4, 1979, Judge de
Vega promulgated the decision. (Id., p. 410.)
We hold that Judge de Vega had the power to decide the case. “Where a
court of first instance is divided into several branches each of the branches
is not a court distinct and separate from the others. Jurisdiction is vested in
the court, not in the judges, so that when a complaint or information is filed
before one branch or judge, jurisdiction does not attach to said branch of
judge alone, to the exclusion of the others. Trial may be had or proceedings
may continue by and before another branch or judge.” (Lumpay, et al. vs.
Moscoso, 105 Phil. 968 [1959].)
It is to be recalled that in the original complaint filed by Anastacia de Jesus
before the Municipal Court of Pulilan, Gerardo Fajardo was one of the
accused. In the amended complaint, Fajardo’s name was dropped and Oscar
Alvaran was named instead. Nonetheless, when Anastacia testified she said
that she was brought to the house of Gerardo Fajardo in Talavera, Nueva
Ecija; that when she woke up after she was forced to drink something,
Fajardo was there with Gorospe and Bulanadi, and all three were naked;
that Fajardo was one of those who raped her; and that it was Fajardo who
brought her to Cirilo Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an
answer but perhaps he decided to cooperate with the complainant because
soon after she finished her testimony the prosecution presented Fajardo as
its next witness. Fajardo testified, among other things, that he was given a
lift from the monument in Caloocan City to Nueva Ecija by Gorospe and
Bulanadi; that in Plaridel, between the market and the bridge, the two
forced Anastacia to go with them; that Anastacia was brought to his house
and later transferred to a nipa hut near an irrigation pump; that in the nipa
hut Anastacia was undressed by Gorospe; that Gorospe, Bulanadi and
Alvaran took turns in spending 20 to 30 minutes inside the hut with
Anastacia; and that he did not have sex with her.
It can thus be seen that Fajardo was a key witness. His testimony
corroborated that of Anastacia in material matters. His direct examination
took place on June 23 and 24, 1976.
His cross-examination commenced on August 4, 1976 (whole day), and was
continued on August 9, 1976. The cross-examination is recorded on pages
112 to 230 of the transcript. But the defense did not indicate that it was
through with Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976.
(Expediente, p. 204.) On the latter date, Fajardo failed to appear and the
case was re-scheduled to be heard on September 13, 1976. (Id., p. 208.) On
September 13, 1976, Fajardo again failed to appear and the case was re-set
to September 29, 1976. (Id., p. 222.) Fajardo did not appear on September
29, 1976, so he was ordered arrested. (Id., p. 223-226.) Fajardo was not
arrested but despite such fact the prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial
court decided the case even though they had not finished cross-examining
Fajardo.
The trial court committed no error in admitting the testimony of Fajardo
although the defense had not finished its cross-examination. An examination
of the transcript of Fajardo’s testimony shows that he was subjected to
detailed cross-examination on material points. In fact, the cross-examination
was lengthier than the direct examination. We adopt with approval the
statement of the court a quo on this point:
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 66
“The records show that the counsel for the accused has extensively cross
examined Fajardo. The Court could not help but wonder what other matters
not yet touched during the cross-examination of Fajardo could still be
elicited from him that would probably destroy or affect his testimony-in-
chief. If the counsel for the accused expected Fajardo to testify further on
material matters favorable to the cause of the defense, he should have
proffered such further testimony and entered into the records how the
absent witness would have testified if he were available for further cross-
examination. The failure of the said counsel to do so indicates that every
material point has been asked from Fajardo during the time he was under
examination.
“While cross-examination is a right available to the adverse party, it is not
absolute in the sense that a cross-examiner could determine for himself the
length and scope of his cross-examination of a witness. The court has
always the discretion to limit the cross examination and to consider it
terminated if it would serve the ends of justice.
“The Court, therefore, hereby resolves to admit the testimony of Fajardo.
This resolution finds support, though indirectly, from Section 6, Rule 133 of
the Rules of Court, which empowers the court to stop the introduction of
further testimony upon a particular point when the evidence upon it is
already so full that more to the same point cannot reasonably be expected
to be additionally persuasive. The position herein taken by the Court in
brushing aside technicalities is in accordance with a fundamental rule that
the provisions of the Rules of Court shall be liberally construed in order to
promote their object and assist the parties in obtaining a just, speedy and
inexpensive determination of every action or proceeding. (Section 2, Rule 1,
Rules of Court).” (Id., p. 418.)
Moreover, even if Fajardo’s testimony be disregarded the accused may
nonetheless be convicted in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses—
those of the prosecution versus those of the defense.
The prosecution’s version has already been stated above. We now have to
consider the version of the appellants which is as follows:
“On September 30, 1974 at 4:00 o’clock in the afternoon, accused Feliciano
Gorospe, Barangay Captain of Andal Alinio district, Talavera, Nueva Ecija,
since 1972 up to the present and at the same time a member of the
Sangguniang Bayan of Talavera, Nueva Ecija, representing the Barangay
Group, went to the house of his friend, Reynaldo Matias at Calipahan,
Talavera, Nueva Ecija, to attend a birthday party (pp. 36 & 37, T.s.n.,
February 7, 1977, CFI). Accused Rufino Bulanadi, who was a former
councilman of Calipahan, Talavera, Nueva Ecija, also attended said party as
he was also invited (p. 12, T.s.n., February 28, 1977, CFI). At about 7:00
o’clock in the evening, several teenagers were shouting in front of the house
of Gerardo Fajardo which is ONE HUNDRED (100) METERS away from the
house where the birthday party was being held (p. 38, T.s.n., February 7,
1977 CFI). The house of Fajardo being within his jurisdiction (pp. 39 & 40,
ibid), accused Barangay Captain Gorospe proceeded to the place where the
shouts were coming from, followed by other guests in the birthday party,
among whom was Councilman Rufino Bulanadi (p. 39, ibid). There were 2
groups of teenagers who were at odds with each other. One was the group
of Gil Nocum and the other, the group of Isagani Castro. Barrio Captain
Gorospe talked with the two (2) groups of teenagers and he was informed
that Fajardo who promised to give a woman to one group made the same
commitment with respect to the same woman to the other group (pp. 41 &
42, ibid). That woman was complainant Anastacia de Jesus, as there were
previous occasions that Gerardo Fajardo brought women of ill-repute to his
house, Gorospe called him and asked him why he brought again another
woman of ill-repute to that place. He even asked Gerardo’s wife, Della
Fajardo, why she tolerated Gerardo to bring that kind of woman in their
house when they are already married. She answered that she could not stop
him because he would cause her bodily harm. Gorospe also called Anastacia
and asked her why she went with Gerardo who is a married man (pp. 44 to
47, ibid). Thereafter he told her to leave the place. Gerardo pleaded that
Anastacia be allowed to stay only for that night and he would take her out of
the place the next day.
The following morning, October 1, 1974 while accused Rufino Bulanadi was
tying the rope of his carabao to graze in the subdivision at Calipahan,
Talavera, Nueva Ecija, Gerardo approached him and said, ‘Konsehal maaari
bang itira ko ang babaing dala-dala ko sa bahay sa balong-balong ng
kalabaw mo’ (Councilman, may I be allowed to let the girl who is with me in
my house to live or stay in the shade of your carabao). He pleaded with
Bulanadi because according to him his wife was quarrelling with him
because of that woman (pp.
21-23, T.s.n., February 28, 1977, CFI). Bulanadi vehemently refused and
reminded Gerardo about the warning of Barrio Captain Gorospe to get that
woman out of the place. Gerardo left, angry and was murmuring (p. 23,
ibid). Bulanadi left his carabao to graze and proceeded to his field to see the
laborers who were pulling grasses there. The farmers in Talavera are
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 67
organized into groups of Twenty (20) for the systematic distribution of
irrigation water, each with a chairman. Bulanadi was the chairman of his
group. Because there was shortage of water, he started the engine of his
irrigation pump. He had his lunch in the field. At 3:00 o’clock in the
afternoon, a son of an owner of a neighboring field informed him that water
was already being released from the Sapang Baca Dam. Upon verifying that
water was really coming, he stopped the motor of his irrigation pump. (pp.
22-26, ibid). He cleaned the passage of water to his field for two (2) hours.
At 5:00 o’clock in the afternoon, he went home to eat because he was
hungry. He left the pump house open because he intended to go back after
supper. When he came back, he saw that there was light inside his pump
house. As he was approaching, Gerardo met him and pleaded that he and
the woman be allowed to sleep there. Bulanadi refused saying, I just bought
this pump recently, ‘Sasalahulain mo ba ito? Hindi pwede yon Gerardo,
kamalasan yon.’ (Are you going to tarnish this? That cannot be Gerardo, that
will bring me bad luck) (pp. 26-29, ibid). Bulanadi saw Anastacia playing
with the water. He told her not to make the water dirty as it is being used as
drinking water and Anastacia said, ‘suya naman kayo kay selan-selan mong
matanda.’ (You are very touchy old man). When Bulanadi told them that he
would report them to the Barrio Captain, they pleaded to him not to do so,
but just the same, he went to the Barrio Captain to report.
When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe, the
latter was conversing with Oscar Alvaran (p. 31, ibid & p. 49, t.s.n.,
February 7, 1977). Upon receiving the report, the 3, Rufino Bulanadi,
Feliciano Gorospe and Oscar Alvaran, went to the pump house. Barrio
Captain Gorospe talked to Gerardo Fajardo and Anastacia de Jesus saying,
‘Talaga palang matitigas ang ulo ninyo, pinaalalahanan ko na kayo, ayaw pa
ninyong lumayo dito!. (You are really hard headed, I have already warned
you but still you did not leave this place). Bulanadi and Gorospe were very
angry and Anastacia got angry too and said that it is none of their business
what she and Gerardo do. She rushed towards the two as if to strike them
but Gerardo stopped her and pleaded with the two to allow them to stay
there just for that night because he said, ‘aabutan na kami ng curfew’ (we
will be curfewed). Gorospe and Bulanadi relented and left warning them that
if they would still be there the next morning they will report the matter to
the P.C. (pp. 31-35, ibid & pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and
Anastacia de Jesus left the pump house of Bulanadi. Gerardo brought
Anastacia to the house of his cousin Floring at Munoz, Nueva Ecija, where
they stayed that night. The following morning, October 3, 1977 he brought
her to the house of his uncle Cirilo Balanagay at Bakal I, Talavera, Nueva
Ecija (Exhibit I). He told his uncle that Anastacia is a student, and he
requested Balanagay to devise ways and means to return her to her parents
because he might be placed in trouble (p. 7, T.s.n., October 12, 1974,
Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where Anastacia was and
volunteered to take her to her parents, but she said she would think it over.
That night, October 3, 1974, Balanagay brought her to the house of Barrio
Captain Andres Nazar of Bakal I, Talavera, Nueva Ecija, to inform him of
Anastacia’s presence in that house, and also so that she could relate
everything to the Barrio Captain (p. 10, T.s.n., October 12, 1974, Municipal
Court of Pulilan). There was a regulation in Bakal I, Talavera, Nueva Ecija,
that a stranger who arrives there should submit a statement as to the
reason of his presence in the barrio. Barrio Captain Andres Nazar took the
statement of Anastacia de Jesus (p 4, T.s.n., February 7, 1977, CFI) which
was in the form of question and answer. This was reduced in writing by
Councilman Aniceto Damian who was summoned for that occasion, in the
presence of the barrio captain himself, Cirilo Balanagay, and his wife. The
statement of Anastacia de Jesus marked as Exhibit “1” was signed by
Councilman Aniceto Damian and Cirilo Balanagay as witnesses (pp. 7 to 14,
T.s.n., February 7, 1977 CFI). To protect the interest of Anastacia, Barrio
Captain Nazar asked Balanagay to notify her parents (p. 13, ibid).
On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the Police
Department of Talavera, Nueva Ecija, where she made a report (Exhibit 13).
Then he wired the family of Anastacia at Pungo, Calumpit, Bulacan. On
October 6, 1974 Anastacia’s relatives arrived, composed of her uncle,
Enrique de Jesus, brother of Victoriano de Jesus, sister Lolita de Jesus and
brother-in-law Adriano Nicolas. They accompanied her to the Police
Department of Talavera, where she made a statement, Exhibit 5 which is
also Exhibit C (p. 3, T.s.n., June 16, 1976, CFI). That same date, October 6,
1974 she was examined by Dr. Norma Gongon at the Dr. Paulino J. Garcia
Memorial Research and Medical Center upon request of the Police
Department of Talavera, Nueva Ecija and a Medical Certificate was issued to
her (Exhs, “G”, “G-1”, “G-2”, “H” and “H-1”).
In the meantime, on October 4, 1974, accused Barrio Captain Feliciano
Gorospe and his wife, with Mayor and Mrs. Bonifacio de Jesus of Talavera,
Nueva Ecija, Engineer and Mrs. Bacani and 3 other couples went to Baguio
City to attend the convention of the Luzon Area Community Christian Family
Movement at St. Louise University. They rented a house and stayed there
for THREE (3) days, October 4, 1974 to October 6, 1974. At 5:00 o’clock in
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 68
the afternoon on October 6, 1974, when the convention ended, they went
home to Talavera, Nueva Ecija (pp. 10-12, T.s.n., February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o’clock in the morning, accused Rufino
Bulanadi on his way to the field to cut grasses for his carabao, passed by a
store to buy cigarette. To his surprise he saw Gerardo there and he asked
him where his ‘alaga’ was (the girl he is taking care of) and Gerardo
answered, ‘Pinagpapahinga ko siya sa Bakal at pinakawalan ko na’ (I let her
rest in Bakal and I have already let her go). Gerardo further said that the girl
was intending to file a case against him, and Bulanadi told him, ‘Mabuti nga
sa iyo, ayaw mo kasing tumigil sa masamang negosyo mo’. (That’s good for
you because you don’t want to stop your bad business). When Bulanadi
proceeded on his way to the field, a jeep suddenly stopped beside him. On
the jeep were PC Sgt. Jimenez, several policemen and Anastacia de Jesus.
Sgt. Jimenez immediately got off the jeep, tied Rufino’s hand with his own
rope that he brought with him to be used in tying the grasses that he would
cut, and brought him to the Municipal Building of Talavera, Nueva Ecija,
where he was locked in jail. When asked about Gerardo, he informed the
P.C. that he saw him in the store. Gerardo was likewise arrested. Bulanadi
was asked about the case and he said he did not know anything about it
(pp. 37 to 40, T.s.n., February 28, 1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife from Baguio in
the evening of October 6, 1974, his mother informed him that a policeman
was looking for him. He told his mother that he would just go to the
Municipal Building the following day because he was tired. The next day,
October 7, 1974 at 8:30 o’clock in the morning, he went to the Municipal
Building. Upon his arrival, Gerardo met him, put his arms on his shoulders
and said that the case can be settled in the amount of P200.00. Gorospe
said ‘tarantado ka pala’ (You son of a bitch). ‘I will not give even a single
centavo because you are the one responsible for this. I have nothing to do
with this case.’ Gorospe proceeded to see Sgt. Jimenez who told him that
the case was transferred to Cabanatuan City. The 3 of them, Bulanadi,
Gorospe and Fajardo were brought to the PC headquarters where they were
interviewed one after the other, after which Gorospe and Bulanadi were sent
home.
The complainant filed the case in the Municipal Court of Pulilan, Bulacan, on
October 8, 1974, two (2) days after she had gone home in Pungo, Calumpit,
Bulacan (Exhibit 8). Gerardo Fajardo who was in the custody of the Police
Department of Talavera, Nueva Ecija was taken by the Policemen of Pulilan,
Bulacan.
On October 22, 1974 while the case was being investigated by Municipal
Judge Alfredo Granados where Anastacia had already testified on October 9,
1974, Anastacia again executed another affidavit because that was what her
lawyer, Atty. Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On the
same date Gerardo Fajardo executed another statement in the Police
Department of Pulilan, Bulacan. Thereafter, complainant filed an Amended
Complaint wherein Gerardo, against whom she was originally complaining
against, was excluded as one of the accused to be utilized as her witness,
and Oscar Alvaran was included for the first time. The alleged date of the
incident was changed from September 30, 1974 to September 25, 1974.
Subsequently the case was elevated to the Court of First Instance of
Bulacan, Branch I.” (Brief, pp. 12-21.)
The version of the appellants does not inspire belief because it appears to
have been contrived. The appellants portray Anastacia as wanton and
unchaste woman—a prostitute. But one’s credulity has to be unduly
stretched in order to buy the line that a girl of 14 years who was still going
to school was a prostitute who went far away from her home in order to
peddle her body. The appellant’s version is simply too crude to be
convincing.
Opposed to the appellants’ version is the affirmative narration of events
made by Anastacia which were corroborated by Gerardo Fajardo. The story
which she unfolded could have been inspired only by her thirst for justice. In
her quest she had to live her ordeal all over again for a lengthy period
because she was on the witness stand on December 15, 1975; January 12,
March 10, March 11, May 3 and June 16, 1976. During all those days she
had to bare in public her shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they
were in details rather than in the highlights of her terrible experience and
could very well be attributed to her tender age and confused state of mind
caused by her private hell.
The Solicitor General states that Gerardo Fajardo, the discharged state
witness, also committed rape hence the appellants should each be found
guilty of three (3) rapes because in a conspiracy the act of one is the act of
all. We cannot agree in respect of the participation of Fajardo. Since Fajardo
was dropped from the complaint his guilt had not been established.
However, We agree with the Solicitor General’s observation “that a motor
vehicle was used to bring her [Anastacia de Jesus] from Plaridel, Bulacan,
where she was first deceived and drugged, and then taken to an isolated
uninhabited place at a nipa hut, near an irrigation pump at Calipahan,
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 69

Talavera, Nueva Ecija, where she was abused, two (2) aggravating
circumstances are present, namely use of motor vehicle and uninhabited
place (Art. 14, R.P.C.),” so that death is the proper penalty. (Brief, pp. 14-
15.) However, for lack of the necessary number of votes the death penalty
cannot be imposed.

WHEREFORE, the judgment of the court a quo is hereby affirmed in all

respects. Costs against the appellants.

SO ORDERED.

     Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro,

Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr. and De la Fuente, JJ.,
concur.

     Fernando, C.J., in the result.

Judgment affirmed.

Notes.—In case of rape, the law in testimony of complainant must be

corroborated by physical evidence showing use of force. (People vs.
Relacion, 95 SCRA 369.)

Facts that complainant was taken in an open jeep in broad daylight and
passed through various towns of Rizal and she was not allegedly raped till
7:00 o’clock p.m. create doubt on the guilt of the accused. (People vs.
Arciaga, 98 SCRA 1.)

Simple and natural testimony of the rape victim is credible. (People vs. Lat,
99 SCRA 297.)

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights rese People vs.
Gorospe, 129 SCRA 233, No. L-51513 May 15, 1984

L-51513 May 15, 1984

G.R. Nos. 115338-39. September 16, 1997.*

 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 70
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LANIE ORTIZ-
MIYAKE, accused-appellant.
Labor Law; Criminal Law; Illegal Recruitment; Words and Phrases;
“Recruitment and Placement,” Defined.—The Labor Code defines recruitment
and placement as “x x x any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers and includes referrals,
contract services, promising or advertising for employment, locally or
abroad, whether for profit or not x x x.”
Same; Same; Same; Republic Act No. 8042 (Migrant Workers and Overseas
Filipinos Act of 1995); Ex Post Facto Laws; R.A. No. 8042 does not apply to
an offense committed before its effectivity.—During the pendency of this
case, Republic Act No. 8042, otherwise known as the “Migrant Workers and
Overseas Filipinos Act of 1995,” was passed increasing the penalty for illegal
recruitment. This new law, however, does not apply to the instant case
because the offense charged herein was committed in 1992, before the
effectivity of said Republic Act No. 8042. Hence, what are applicable are the
aforecited Labor Code provisions.
Same; Same; Same; In illegal recruitment cases, the number of persons
victimized is determinative.—It is evident that in illegal recruitment cases,
the number of persons victimized is determinative. Where illegal recruitment
is committed against a lone victim, the accused may be convicted of simple
illegal recruitment which is punishable with a lower penalty under Article
39(c) of the Labor Code. Corollarily, where the offense is committed against
three or more persons, it is qualified to illegal recruitment in large scale
which provides a higher penalty under Article 39(a) of the same Code.
Same; Same; Same; Right of Confrontation; The right of confrontation has
two purposes: first, to secure the opportunity of cross-examination; and,
second, to allow the judge to observe the deportment and appearance of
the witness while testifying.—Under the aforecited rules, the accused in a
criminal case is guaranteed the right of confrontation. Such right has two
purposes: first, to secure the opportunity of cross-examination; and, second,
to allow the judge to observe the deportment and appearance of the witness
while testifying.
Same; Same; Same; Same; Hearsay Rule; The right of confrontation is not
absolute as it is recognized that it is sometimes impossible to recall or
produce a witness who has already testified in a previous proceeding, in
which event his previous testimony is made admissible as a distinct piece of
evidence, by way of exception to the hearsay rule.—This right, however, is
not absolute as it is recognized that it is sometimes impossible to recall or
produce a witness who has already testified in a previous proceeding, in
which event his previous testimony is made admissible as a distinct piece of
evidence, by way of exception to the hearsay rule. The previous testimony is
made admissible because it makes the administration of justice orderly and
expeditious.
Same; Same; Same; Same; Same; Judgments; The exception to the right of
confrontation contemplated by law covers only the utilization of testimonies
of absent witnesses made in previous proceedings, and does not include
utilization of previous decisions or judgments.—Under these rules, the
adoption by the Makati trial court of the facts stated in the decision of the
Parañaque trial court does not fall under the exception to the right of
confrontation as the exception contemplated by law covers only the
utilization of testimonies of absent witnesses made in previous proceedings,
and does not include utilization of previous decisions or judgments.
Same; Same; Same; Same; Same; Same; A previous decision or judgment,
while admissible in evidence, may only prove that an accused was previously
convicted of a crime—it may not be used to prove that the accused is guilty
of a crime charged in a subsequent case.—A previous decision or judgment,
while admissible in evidence, may only prove that an accused was previously
convicted of a crime. It may not be used to prove that the accused is guilty
of a crime charged in a subsequent case, in lieu of the requisite evidence
proving the commission of the crime, as said previous decision is hearsay.
To sanction its being used as a basis for conviction in a subsequent case
would constitute a violation of the right of the accused to confront the
witnesses against him.
Same; Same; Same; Same; Same; Every conviction must be based on the
findings of fact made by a trial court according to its appreciation of the
evidence before it—a conviction may not be based merely on the findings of
fact of another court.—As earlier stated, the Makati court’s utilization of and
reliance on the previous decision of the Parañaque court must be rejected.
Every conviction must be based on the findings of fact made by a trial court
according to its appreciation of the evidence before it. A conviction may not
be based merely on the findings of fact of another court, especially where
what is presented is only its decision sans the transcript of the testimony of
the witnesses who testified therein and upon which the decision is based.
Same; Same; Same; Words and Phrases; “Simple Illegal Recruitment” and
“Illegal Recruitment in Large Scale,” Distinguished.—The distinction between
simple illegal recruitment and illegal recruitment in large scale are
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 71
emphasized by jurisprudence. Simple illegal recruitment is committed where
a person: (a) undertakes any recruitment activity defined under Article 13(b)
or any prohibited practice enumerated under Articles 34 and 38 of the Labor
Code; and (b) does not have a license or authority to lawfully engage in the
recruitment and placement of workers. On the other hand, illegal
recruitment in large scale further requires a third element, that is, the
offense is committed against three or more persons, individually or as a
group.
Same; Same; Same; Evidence; In illegal recruitment in large scale, while the
law does not require that at least three victims testify at the trial, it is
necessary that there is sufficient evidence proving that the offense was
committed against three or more persons.—In illegal recruitment in large
scale, while the law does not require that at least three victims testify at the
trial, it is necessary that there is sufficient evidence proving that the offense
was committed against three or more persons. This Court agrees with the
trial court that the evidence presented sufficiently proves that illegal
recruitment was committed by appellant against Marasigan, but the same
conclusion cannot be made as regards Generillo and Del Rosario as well.
Same; Same; Same; Estafa; Double Jeopardy; Conviction under the Labor
Code for illegal recruitment does not preclude punishment under the Revised
Penal Code for the felony of estafa.—The Court likewise affirms the
conviction of appellant for estafa which was committed against Marasigan.
Conviction under the Labor Code for illegal recruitment does not preclude
punishment under the Revised Penal Code for the felony of estafa. This
Court is convinced that the prosecution proved beyond reasonable doubt
that appellant violated Article 315(2)(a) of the Revised Penal Code. People
vs. Ortiz-Miyake, 279 SCRA 180, G.R. Nos. 115338-39 September 16, 1997
REGALADO, J.:
Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in
large scale in the Regional Trial Court of Makati on a complaint initiated by
Elenita Marasigan, Imelda Generillo and Rosamar del Rosario. In addition,
she was indicted for estafa by means of false pretenses in the same court,
the offended party being Elenita Marasigan alone.
The information in the charge of illegal recruitment in large scale in Criminal
Case No. 92-6153 reads as follows:
That in or about the period comprised from June 1992 to August 1992, in
the Municipality of Paraaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, falsely
representing herself to have the capacity and power to contract, enlist and
recruit workers for employment abroad did then and there willfully,
unlawfully, and feloniously collect for a fee, recruit and promise
employment/job placement abroad to the following persons, to wit: 1)
Rosamar del Rosario; 2) Elenita Marasigan; 3) Imelda Generillo, without first
securing the required license or authority from the Department of Labor and
Employment, thus amounting to illegal recruitment in large scale, in violation
of the aforecited law. 1chanroblesvirtuallawlibrary
The information in the charge for estafa in Criminal Case No. 92-6154
alleges:
That in or about or sometime in the month of August, 1992, in the
Municipality of Paraaque, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means of
false pretenses executed prior to or simultaneously with the commission of
the fraud, falsely pretending to have the capacity and power to send
complainant Elenita Marasigan to work abroad, succeeded in inducing the
latter to give and deliver to her the total sum of P23,000.00, the accused
knowing fully well that the said manifestations and representation are false
and fraudulent and calculated only to deceive the said complainant to part
with her money, and, once in possession thereof, the said accused did then
and there willfully, unlawfully and feloniously appropriate, apply and convert
the same to her own personal use and benefit, to the damage and prejudice
of the said Elenita Marasigan, in the aforementioned amount
of P23,000.00. 2chanroblesvirtuallawlibrary
Upon arraignment, appellant pleaded not guilty to the charges and the cases
were tried jointly in Branch 145 of the Regional Trial Court of Makati.
Of the three complainants in the case for illegal recruitment in large scale,
Marasigan was the only one who testified at the trial. The two other
complainants, Generillo and Del Rosario, were unable to testify as they were
then abroad.
Marasigan testified that she was a 32 year-old unmarried sales
representative in 1992 when she was introduced to appellant by her co-
complainants. 3 Appellant promised Marasigan a job as a factory worker in
Taiwan for a P5,000.00 fee. At that time, Marasigan had a pending
application for overseas employment pending in a recruitment agency.
Realizing that the fee charged by appellant was much lower than that of the
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 72
agency, Marasigan withdrew her money from the agency and gave it to
appellant. 4chanroblesvirtuallawlibrary
Marasigan paid appellant P5,000.00, but she was later required to make
additional payments. By the middle of the year, she had paid a total
of P23,000.00 on installment basis. 5 Save for two receipts, 6 Marasigan was
not issued receipts for the foregoing payments despite her persistence in
requesting for the same.
Marasigan was assured by appellant that obtaining a Taiwanese visa would
not be a problem. 7 She was also shown a plane ticket to Taiwan, allegedly
issued in her name. 8Appellant issued Marasigan a photocopy of her plane
ticket, 9 the original of which was promised to be given to her before her
departure. 10chanroblesvirtuallawlibrary
Marasigan was never issued a visa. 11 Neither was she given the promised
plane ticket. Unable to depart for Taiwan, she went to the travel agency
which issued the ticket and was informed that not only was she not booked
by appellant for the alleged flight, but that the staff in the agency did not
even know appellant.
Later, Marasigan proceeded to the supposed residence of appellant and was
informed that appellant did not live there. 12 Upon verification with the
Philippine Overseas Employment Administration (POEA), it was revealed that
appellant was not authorized to recruit workers for overseas
employment. 13 Marasigan wanted to recover her money but, by then,
appellant could no longer be located.
The prosecution sought to prove that Generillo and Del Rosario, the two
other complainants in the illegal recruitment case, were also victimized by
appellant. In lieu of their testimonies, the prosecution presented as
witnesses Lilia Generillo, the mother of Imelda Generillo, and Victoria Amin,
the sister of Del Rosario.
Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her
application for placement abroad which was made through
appellant. 14 Twice, she accompanied her daughter to the residence of
appellant so that she could meet her; however, she was not involved in the
transactions between her daughter and appellant. 15 Neither was she around
when payments were made to appellant. Imelda Generillo was unable to
leave for abroad and Lilia Generillo concluded that she had become a victim
of illegal recruitment.
The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario,
to show that the latter was also a victim of illegal recruitment. Victoria Amin
testified that appellant was supposed to provide her sister a job abroad. She
claimed that she gave her sister a total of P10,000.00 which was intended to
cover the latters processing fee. 16chanroblesvirtuallawlibrary
Victoria Amin never met appellant and was not around when her sister made
payments. She assumed that the money was paid to appellant based on
receipts, allegedly issued by appellant, which her sister showed her. 17 Del
Rosario was unable to leave for abroad despite the representations of
appellant. Victoria Amin claimed that her sister, like Marasigan and Generillo,
was a victim of illegal recruitment.
The final witness for the prosecution was Riza Balberte, 18 a representative
of the POEA, who testified that appellant was neither licensed nor authorized
to recruit workers for overseas employment, POEA certificate
certification. 19chanroblesvirtuallawlibrary
Upon the foregoing evidence, the prosecution sought to prove that although
two of the three complainants in the illegal recruitment case were unable to
testify, appellant was guilty of committing the offense against all three
complainants and, therefore, should be convicted as charged.
On the other hand, appellant, who was the sole witness for the defense,
denied that she recruited the complainants for overseas employment and
claimed that the payments made to her were solely for purchasing plane
tickets at a discounted rate as she had connections with a travel
agency. 20chanroblesvirtuallawlibrary
She denied that she was paid by Marasigan the amount of P23,000.00,
claiming that she was paid only P8,000.00, as shown by a receipt. She
further insisted that, through the travel agency, 21 she was able to purchase
discounted plane tickets for the complainants upon partial payment of the
ticket prices, the balance of which she guaranteed. According to her, the
complainants were supposed to pay her the balance but because they failed
to do so, she was obliged to pay the entire cost of each ticket.
The evidence presented by the parties were thus contradictory but the trial
court found the prosecutions evidence more credible. On December 17,
1993, judgment was rendered by said court convicting appellant of both
crimes as charged. 22chanroblesvirtuallawlibrary
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 73
In convicting appellant of illegal recruitment in large scale, the lower court
adopted a previous decision of Branch 78 of the Metropolitan Trial Court of
Paraaque as a basis for the judgment. Said previous decision was a
conviction for estafa promulgated on July 26, 1993, 23rendered in Criminal
Cases Nos. 74852-53, involving the same circumstances in the instant case,
wherein complainants Generillo and Del Rosario charged appellant with two
counts of estafa. This decision was not appealed and had become final and
executory.
In thus convicting appellant in the illegal recruitment case, the decision
therein of the Regional Trial Court stated that the facts in the foregoing
estafa cases were the same as those in the illegal recruitment case before it.
It, therefore, adopted the facts and conclusions established in the earlier
decision as its own findings of facts and as its rationale for the conviction in
the case before it. 24chanroblesvirtuallawlibrary
In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve
the penalty of life imprisonment for illegal recruitment in large scale, as well
as to pay a fine of P100,000.00. Appellant was also ordered to reimburse the
complainants the following payments made to her, viz.: (a)
Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del
Rosario, P2,500.00.
In the same judgment and for the estafa charged in Criminal Case No. 92-
6154, the Makati court sentenced appellant to suffer imprisonment of four
(4) years and two (2) months of prision correccional, as minimum, to eight
(8) years of prision mayor, as maximum, and to pay the costs.
In the instant petition, appellant seeks the reversal of the foregoing
judgment of the Regional Trial Court of Makati convicting her of illegal
recruitment in large scale and estafa. Specifically, she insists that the trial
court erred in convicting her of illegal recruitment in large scale as the
evidence presented was insufficient.
Moreover, appellant claims that she is not guilty of acts constituting illegal
recruitment, in large scale or otherwise, because contrary to the findings of
the trial court, she did not recruit the complainants but merely purchased
plane tickets for them. Finally, she contends that in convicting her of estafa,
the lower court erred as she did not misappropriate the money paid to her
by Marasigan, hence there was no damage to the complainants which would
substantiate the conviction.
We uphold the finding that appellant is guilty but we are, compelled to
modify the judgment for the offenses she should be convicted of and the
corresponding penalties therefor.
Appellant maintains that her conviction for illegal recruitment in large scale
is erroneous. It is her view that in the prosecution of a case for such
offense, at least three complainants are required to appear as witnesses in
the trial and, since Marasigan was the only complainant presented as a
witness, the conviction was groundless.
The Solicitor General also advocates the conviction of appellant for simple
illegal recruitment which provides a lower penalty. The Court finds the
arguments of the Solicitor General meritorious and adopts his position.
The Labor Code defines recruitment and placement as x x x any act of
canvassing, enlisting, contracting transporting, utilizing, hiring or procuring
workers and includes referrals, contract services, promising or advertising
for employment, locally or abroad, whether for profit or not x x
x. 25chanroblesvirtuallawlibrary
Illegal recruitment is likewise defined and made punishable under the Labor
Code, thus:
Art. 38. Illegal Recruitment. -
(a) Any recruitment activities, including the prohibited practices enumerated
under Article 34 of this Code, to be undertaken by non-licensees or non-
holders of authority shall be deemed illegal and punishable under Article 39
of this Code. x x x.
(b) Illegal recruitment when committed by a syndicate or in large scale shall
be considered an offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.
x x x Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
Art. 39. Penalties. -
(a) The penalty of life imprisonment and a fine of One Hundred Thousand
Pesos (P100,000.00) shall be imposed if Illegal Recruitment constitutes
economic sabotage as defined herein;
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 74
xxx
(c) Any person who is neither a licensee nor a holder of authority under this
Title found violating any provision thereof or its implementing rules and
regulations shall, upon conviction thereof, suffer the penalty of
imprisonment of not less than four (4) years nor more than eight (8) years
or a fine of not less than P20,000.00 nor more than P100,000.00, or both
such imprisonment and fine, at the discretion of the court. x x
x 26chanroblesvirtuallawlibrary
During the pendency of this case, Republic Act No. 8042, otherwise known
as the Migrant Workers and Overseas Filipinos Act of 1995, was passed
increasing the penalty for illegal recruitment. This new law, however, does
not apply to the instant case because the offense charged herein was
committed in 1992, before the effectivity of said Republic Act No. 8042.
Hence, what are applicable are the aforecited Labor Code provisions.
It is evident that in illegal recruitment cases, the number of persons
victimized is determinative. Where illegal recruitment is committed against a
lone victim, the accused may be convicted of simple illegal recruitment
which is punishable with a lower penalty under Article 39(c) of the Labor
Code. Corollarily, where the offense is committed against three or more
persons, it is qualified to illegal recruitment in large scale which provides a
higher penalty under Article 39(a) of the same Code.
The position of the Solicitor General is that the conviction of appellant
should be merely for the lesser offense of simple illegal recruitment. He
submits that the Regional Trial Court of Makati erred in convicting appellant
of illegal recruitment in large scale because the conviction was based on an
earlier decision of the Metropolitan Trial Court of Paraaque where appellant
was found guilty of estafa committed against Generillo and Del Rosario.
It is argued that the Makati court could not validly adopt the facts embodied
in the decision of the Paraaque court to show that illegal recruitment was
committed against Generillo and Del Rosario as well. Illegal recruitment was
allegedly proven to have been committed against only one person,
particularly, Elenita Marasigan. Appellant, therefore, may only be held guilty
of simple illegal recruitment and not of such offense in large scale.
He further submits that the adoption by the Makati court of the facts in the
decision of the Paraaque court for estafa to constitute the basis of the
subsequent conviction for illegal recruitment is erroneous as it is a violation
of the right of appellant to confront the witnesses, that is, complainants
Generillo and Del Rosario, during trial before it. He cites the pertinent
provision of Rule 115 of the Rules of Court, to wit:
Section 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled:
xxx
(f) To confront and cross-examine the witnesses against him at the trial.
Either party may utilize as part of its evidence the testimony of a witness
who is deceased, out of or cannot, with due diligence be found in the
Philippines, unavailable or otherwise unable to testify, given in another case
or proceeding, judicial or administrative, involving the same parties and
subject matter, the adverse party having had the opportunity to cross-
examine him.
xxx
It will be noted that the principle embodied in the foregoing rule is likewise
found in the following provision of Rule 130:
Section 47. Testimony or deposition at a former proceeding. - The testimony
or deposition of a witness deceased or unable to testify, given in a former
case or proceeding, judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the adverse party who had
the opportunity to cross-examine him.
Under the aforecited rules, the accused in a criminal case is guaranteed the
right of confrontation. Such right has two purposes: first, to secure the
opportunity of cross-examination; and, second, to allow the judge to
observe the deportment and appearance of the witness while
testifying. 27chanroblesvirtuallawlibrary
This right, however, is not absolute as it is recognized that it is sometimes
impossible to recall or produce a witness who has already testified in a
previous proceeding, in which event his previous testimony is made
admissible as a distinct piece of evidence, by way of exception to the
hearsay rule. 28 The previous testimony is made admissible because it makes
the administration of justice orderly and
expeditious. 29chanroblesvirtuallawlibrary
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 75
Under these rules, the adoption by the Makati trial court of the facts stated
in the decision of the Paraaque trial court does not fall under the exception
to the right of confrontation as the exception contemplated by law covers
only the utilization of testimonies of absent witnesses made in previous
proceedings, and does not include utilization of previous decisions or
judgments.
In the instant case, the prosecution did not offer the testimonies made by
complainants Generillo and Del Rosario in the previous estafa case. Instead,
what was offered, admitted in evidence, and utilized as a basis for the
conviction in the case for illegal recruitment in large scale was the previous
decision in the estafa case.
A previous decision or judgment, while admissible in evidence, may only
prove that an accused was previously convicted of a crime. 30It may not be
used to prove that the accused is guilty of a crime charged in a subsequent
case, in lieu of the requisite evidence proving the commission of the crime,
as said previous decision is hearsay. To sanction its being used as a basis for
conviction in a subsequent case would constitute a violation of the right of
the accused to confront the witnesses against him.
As earlier stated, the Makati courts utilization of and reliance on the previous
decision of the Paraaque court must be rejected. Every conviction must be
based on the findings of fact made by a trial court according to its
appreciation of the evidence before it. A conviction may not be based merely
on the findings of fact of another court, especially where what is presented
is only its decision sansthe transcript of the testimony of the witnesses who
testified therein and upon which the decision is based.
Furthermore, this is not the only reason why appellant may not be held
liable for illegal recruitment in large scale. An evaluation of the evidence
presented before the trial court shows us that, apart from the adopted
decision in the previous estafa case, there was no other basis for said trial
courts conclusion that illegal recruitment in large scale was committed
against all three complainants.
The distinction between simple illegal recruitment and illegal recruitment in
large scale are emphasized by jurisprudence. Simple illegal recruitment is
committed where a person: (a) undertakes any recruitment activity defined
under Article 13(b) or any prohibited practice enumerated under Articles 34
and 38 of the Labor Code; and (b) does not have a license or authority to
lawfully engage in the recruitment and placement of workers. 31 On the
other hand, illegal recruitment in large scale further requires a third element,
that is, the offense is committed against three or more persons, individually
or as a group. 32chanroblesvirtuallawlibrary
In illegal recruitment in large scale, while the law does not require that at
least three victims testify at the trial, it is necessary that there is sufficient
evidence proving that the offense was committed against three or more
persons. This Court agrees with the trial court that the evidence presented
sufficiently proves that illegal recruitment was committed by appellant
against Marasigan, but the same conclusion cannot be made as regards
Generillo and Del Rosario as well.
The testimonies of Generillos mother, Lilia Generillo, and Del Rosarios sister,
Victoria Amin, reveal that these witnesses had no personal knowledge of the
actual circumstances surrounding the charges filed by Generillo and Del
Rosario for illegal recruitment in large scale. Neither of these witnesses was
privy to the transactions between appellant and each of the two
complainants. The witnesses claimed that appellant illegally recruited
Generillo and Del Rosario. Nonetheless, we find their averments to be
unfounded as they were not even present when Generillo and Del Rosario
negotiated with and made payments to appellant.
For insufficiency of evidence and in the absence of the third element of
illegal recruitment in large scale, particularly, that the offense is committed
against three or more persons, we cannot affirm the conviction for illegal
recruitment in large scale. Nonetheless, we agree with the finding of the trial
court that appellant illegally recruited Marasigan, for which she must be held
liable for the lesser offense of simple illegal recruitment.
Appellants defense that she did not recruit Marasigan but merely purchased
a plane ticket for her is belied by the evidence as it is undeniable that she
represented to Marasigan that she had the ability to send people to work as
factory workers in Taiwan. Her pretext that the fees paid to her were merely
payments for a plane ticket is a desperate attempt to exonerate herself from
the charges and cannot be sustained.
Furthermore, no improper motive may be attributed to Marasigan in
charging appellant. The fact that Marasigan was poor does not make her so
heartless as to contrive a criminal charge against appellant. She was a
simple woman with big dreams and it was appellants duplicity which
reduced those dreams to naught. Marasigan had no motive to testify falsely
against appellant except to tell the truth. 33chanroblesvirtuallawlibrary
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 76
Besides, if there was anyone whose testimony needed corroboration, it was
appellant as there was nothing in her testimony except the bare denial of
the accusations. 34 If appellant really intended to purchase a plane ticket and
not to recruit Marasigan, she should have presented evidence to support this
claim. Also, in her testimony, appellant named an employee in the travel
agency who was allegedly her contact person for the purchase of the ticket.
She could have presented that person, or some other employee of the
agency, to show that the transaction was merely for buying a ticket. Her
failure to do the foregoing acts belies her pretensions.
The Court likewise affirms the conviction of appellant for estafa which was
committed against Marasigan. Conviction under the Labor Code for illegal
recruitment does not preclude punishment under the Revised Penal Code for
the felony of estafa. 35 This Court is convinced that the prosecution proved
beyond reasonable doubt that appellant violated Article 315(2)(a) of the
Revised Penal Code which provides that estafa is committed:
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.
The evidence is clear that in falsely pretending to possess power to deploy
persons for overseas placement, appellant deceived the complainant into
believing that she would provide her a job in Taiwan. Her assurances made
Marasigan exhaust whatever resources she had to pay the placement fee
required in exchange for the promised job. The elements of deceit and
damage for this form of estafa are indisputably present, hence the
conviction for estafa in Criminal Case No. 92-6154 should be affirmed.
Under the Revised Penal Code, an accused found guilty of estafa shall be
sentenced to:
x x x The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos x x
x. 36chanroblesvirtuallawlibrary
The amount involved in the estafa case is P23,000.00. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken from the
maximum period of the foregoing basic penalty, specifically, within the range
of imprisonment from six (6) years, eight (8) months and twenty-one (21)
days to eight (8) years.
On the other hand, the minimum penalty of the indeterminate sentence shall
be within the range of the penalty next lower in degree to that provided by
law, without considering the incremental penalty for the amount in excess
of P22,000.00. 37 That penalty immediately lower in degree is prison
correccional in its minimum and medium periods, with a duration of six (6)
months and one (1) day to four (4) years and two (2) months. On these
considerations, the trial court correctly fixed the minimum and maximum
terms of the indeterminate sentence in the estafa case.
While we must be vigilant and should punish, to the fullest extent of the law,
those who prey upon the desperate with empty promises of better lives, only
to feed on their aspirations, we must not be heedless of the basic rule that a
conviction may be sustained only where it is for the correct offense and the
burden of proof of the guilt of the accused has been met by the prosecution.
WHEREFORE, the judgment of the court a quofinding accused-appellant
Lanie Ortiz-Miyake guilty beyond reasonable doubt of the crimes of illegal
recruitment in large scale (Criminal Case No. 92-6153) and estafa (Criminal
Case No. 92-6154) is hereby MODIFIED, as follows:
1) Accused-appellant is declared guilty beyond reasonable doubt of simple
illegal recruitment, as defined in Article 38(a) of the Labor Code, as
amended. She is hereby ordered to serve an indeterminate sentence of four
(4) years, as minimum, to eight (8) years, as maximum, and to pay a fine
of P100,000.00.
2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is
ordered to serve an indeterminate sentence of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, and to reimburse Elenita Marasigan the sum
of P23,000.00.
In all other respects, the aforestated judgment is AFFIRMED, with costs
against accused-appellant in both instances.
SO ORDERED.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 77
G.R. No. L-29271 August 29, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADELINO
BARDAJE, defendant-appellant.
Criminal Law; Evidence; Rape; In crimes against chastity conviction or
acquittal depends almost entirely on the credibility of complaining witness.—
In crimes against chastity, the conviction or acquittal of an accused depends
almost entirely on the credibility of a complainant’s testimony since by the
intrinsic nature of those crimes they usually involve only two persons—the
complainant and the accused. The offended party’s testimony, therefore,
must be subjected to thorough scrutiny for a determination of its veracity
beyond reasonable doubt. In the instant case, we find MARCELINA’s charge
that she was forcibly abducted and afterwards raped by ADELINO in
conspiracy with FIVE OTHERS highly dubious and inherently improbable.
Same; Same; Same; Physical evidence is of the highest order. The medical
findings showed no evidence of external injuries, disproving what
complainant testified to that she was dragged from the house thus rendering
her credibility in doubt.—To start with according to the medical findings, “no
evidence of external injuries was found around the vulva or any part of the
body” of Complainant, a fact which is strange, indeed, considering that
Complainant was allegedly “dragged”, “slapped” into unconsciousness,
“wrestled” with, and criminally abused. Physical evidence is of the highest
order and speaks more eloquently than all witnesses put together. We are
also faced with the medical finding of “old healed lacerations” in the hymen
which, according to the testimony of the examimng physician would have
occurred two weeks or even one month before if said lacerations had been
caused by sexual intercourse. This expert opinion bolsters the defense that
MARCELINA and ADELINO had previous amorous relations at the same time
that it casts serious doubts on the charge of intercourse by force and
intimidation.
Same; Same; Same; It is impossible that complainant could have been
raped by the accused inside a small room occupied by a woman and two
children and in a small hut where the owner, his wife and seven children are
all particularly where allegedly the appellant was with five other persons
residing therein.—Secondly, by Complainant’s own admission the first hut
she was taken to was a small one-room affair occupied by a woman and two
small children. Her charge, therefore, that she was ravished in that same
room is highly improbable and contrary to human experience. Thirdly, from
her own lips Complainant testified that the second hut where she was taken,
that of Ceferino Armada, consisted of a small room separated from the sala
by a wall of split bamboos. Further that Ceferino with his wife and seven
children all lived therein. It challenges human credulity that she could have
been sexually abused with so many within hearing and seeing distance. It is
unbelievable, too, that under those circumstances the FIVE OTHERS could
have stood guard outside, armed with bolos and drinking, while ADELINO
allegedly took advantage of her. If rape were, indeed, their malevolent
intent, they would, in all probability, have taken turns in abusing her. That
they did not, indicates that there was, indeed some special relationship
between MARCELINA and ADELINO. Furthermore, with people around, and
the hut constructed as it was, it would have been an easy matter for
MARCELINA to have shouted and cried for help. Surely, the old man
Ceferino, his wife and/or his children could not have been insensible to her
outcries notwithstanding their relationship to ADELINO. The aphorism still
rings true that evidence to be believed must not only come from the mouth
of a credible witness but must be credible in itself.
Same; Same; Same; A girl of tender age may be confronted with a situation
wherein she could not admit to her parents that she actually eloped with
appellant.—This case also constitutes an exception to the general belief that
a young girl would not expose herself to the ordeal of public trial if she were
not motivated solely by a desire to have the culprit who had ravished and
shamed her placed behind bars. As we view it, MARCELINA was confronted
with a paradoxical situation as a daughter of relatively tender age, who
could not shamefacedly admit to her parents that she had eloped and
voluntarily submitted to sexual intercourse, since that elopement must have
met with righteous indignation on the part of her parents. As a result,
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 78
MARCELINA was faced with no other choice but to charge ADELINO with
rape or incur the ire of her parents and social disrepute from a small
community.
Same; Same; Same; Extrajudicial confession is not enough to convict unless
accompanied by evidence of corpus delicti.—In respect of the alleged
confession of ADELINO, suffice it to re-state that “an extrajudicial confession
made by an accused shall not be sufficient ground for conviction unless
corroborated by evidence of corpus delicti”. Corpus delicti is proved when
the evidence on record shows that the crime prosecuted had been
committed. That proof has not been met in the case at bar, the evidence
establishing more of an elopement rather than kidnapping or illegal
detention or forcible abduction, and much less rape. Moreover, ADELINO,
age 18, was by himself when being investigated by soldiers, without benefit
of counsel nor of anyone to advise him of his rights. Aside from his
declaration that his confession was obtained through maltreatment and
violence, it was also vitiated by a procedural irregularity testified to by no
less than prosecution witness Sgt. Pedro Gacelos to the effect that he and
ADELINO were ordered to get out from the Clerk of Court’s room after he
presented the statement to the Clerk of Court, Mr. Rojas. There is reason to
believe, therefore, that the so-called confession was attested without
ADELINO’s presence so that the latter cannot be said to have duly
subscribed and sworn to it.
Criminal Procedure; In capital offenses, the trial court should call the
attention of the accused to the discrepancy between the designation of the
crime in the preamble to the information and the facts pleaded in the body
thereof. In the case at bar the preamble denominated the offense as rape
with illegal detention, but the body of the information alleged facts
constitutive of forcible abduction with rape.—It should also be noted that
throughout the hearings before the trial court, it was assumed that ADELINO
was being held responsible for the complex crime of Rape with Illegal
Detention-While it is true that an accused can be punished for a crime
described by the facts alleged in the Information despite a wrong
designation of the crime in the preamble of the Information, yet, in capital
cases, it should be desirable that, whenever a discrepancy is noted between
the designation of the crime made by the Fiscal and the crime described by
the facts pleaded in his Information, the lower Court should call attention of
the accused to the discrepancy, so that the accused may be fully apprised of
the nature and cause of the accusation against him. This was not done in
regards to ADELINO who all the time was under the impression that he was
being tried for Rape with Illegal Detention, and not for Forcible Abduction
with Rape. If ADELINO had known that he was being tried for Forcible
Abduction with Rape, he may have changed the strategy or tactics of his
defense. Not that it could be said he would have done so; but he should
have been advised he had the right, and given the opportunity, to do so.
Same; Constitutional Law; The trial court should not delegate to the accused
the responsibility of getting his witnesses. The court should subpoena a
defense witness if accused asks for it.—Again, one of the rights of an
accused is “to have compulsory process issued to secure the attendance of
witnesses on his behalf.” ADELINO had stated that, while MARCELINA was in
the house of Ceferino Armada, she curled the hair of Narita, one of the
latter’s children, as well as the hair of other girls in the vicinity. ADELINO
wanted to have Narita testify on his behalf, and a subpoena had been issued
to her. But instead of taking effective steps to have Narita brought to Court,
the lower court gave responsibility for Narita’s attendance to the defense,
expressly stating that, if the defense was not able to bring her to the Court,
her testimony will be dispensed with.
Same; Evidence; Judges; A trial judge should take a more active role in
asking searching questions to witnesses.—It may not be amiss to state then
that just as in pleas of guilty where a grave offense is charged trial Judges
have been enjoined to refrain from accepting them with alacrity but to be
extra solicitous in seeing to it that an accused fully understands the import
of his plea, so also, in prosecutions for capital offenses, it behooves the trial
courts to exercise greater care in safeguarding the rights of an accused. The
trial Judge should also take a more active role by means of searching
questions in the examination of witnesses for the ascertainment of the truth
and credibility of their testimonies so that any judgment of conviction
imposing the supreme penalty may rest on firm and unequivocal grounds.
The life and liberty of an individual demand no less.
Aquino, J., dissenting:
Criminal Law; The accused may not be guilty of rape beyond reasonable
doubt, but he is guilty of serious illegal detention of a minor.—But there is
no doubt that Bardaje and his companions committed kidnapping and
serious illegal detention of a minor as well as of a “female”, an offense
penalized in article 267(4) of the Revised Penal Code with reclusion perpetua
to death. Republic Act No. 18 specifically made kidnapping of a minor and a
woman a capital offense in order to deter the kidnapping of minors and
women, a crime which was very rampant after liberation. The victim might
have been a girl, who, like many teenagers of today does not safeguard her
virtue or chastity and easily succumbs to the temptation of the flesh. Time
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 79
Magazine reports that at the Puerta del Sol in Madrid, Spain, there is a
billboard on which is emblazoned Oscar Wilde’s witticism: “Puedo resistir
todo excepto la tentacion.”) People vs. Bardaje, 99 SCRA 388, No. L-29271
August 29, 1980
MELENCIO-HERRERA, J.:
The accused ADELINO Bardaje in this case, after trial, has been convicted of
Forcible Abduction with Rape, and sentenced to death. The case is before us
on automatic review.
On December 20, 1965, MARCELINA Cuizon lodged the following complaint
with the Court of First Instance of Samar against ADELINO and five (5)
others 'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and
Fidel Ansuas (hereinafter called the FIVE OTHERS):
The undersigned complainant, after having been duly sworn to according to
law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal,
Silvino Odal and Fidel Ansuas of the crime of Rape, committed as follows:
That on or about the period from the 14th day to 17th day
of December, 1965, in Bo. Lopig, Sta. Rita, Province of
Samar, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused, conspiring,
confederating together and helping one another, with
lewd design, by means of force and intimidation, and at
nighttime, did then and there wilfully, unlawfully and
feloniously drag one Marcelina Cuizon from the house of
one Norma Fernandez and brought her to a far away place
and once there, accused Adelino Bardaje, by means of
force and intimidation forcibly had sexual intercourse with
her several times while his co-accused were on guard.
Contrary to law. (Emphasis supplied).
ADELINO was arrested on December 17th, and it was on December 20th,
when he signed the alleged confession, Exhibit "C", admitting having
kidnapped and molested MARCELINA, 1 which was probably the basis for
MARCELINA's complaint, presumably prepared with the help of the Fiscal.
What has been noticed is that, in Exhibit "C", ADELINO had mentioned that,
besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group when
MARCELINA was "kidnapped". There is no indication in the record as to why
Domingo Odal was not included in MARCELINA's complaint as one of the
accused.
The following day, December 21st, the Fiscal's office filed the following
Information with the Court:
The undersigned Assistant Provincial Fiscal accuses
Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal,
Silvino Odal and Fidel Ansuas of the crime of Rape with
Illegal Detention  committed as follows:
That on or about the period from the 14th day to 17th day of December,
1965, in Bo. Crossing, Municipality of Sta. Rita, Province of Samar,
Philippines and within the jurisdiction of this Honorable court the above-
named accused, conspiring, confederating together and helping one
another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel
Ansuas, with lewd design, by means of force and intimidation, armed with
bolos and at nighttime, did then and there wilfully, unlawfully and
feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the
house of one Norma Fernandez and brought her to a far away place and
once there, accused Adelino Bardaje, by means of force and intimidation
forcibly had sexual intercourse with her for several times while his co-
accused were on guard.
That the commission of the crime the aggravating circumstances that it was
committed in an uninhabited place and with the aid of armed men, were
present. (Emphasis supplied).
It will be noted that the complaint filed directly by MARCELINA with the
Court was amended by the Fiscal in the Information. While MARCELINA
charged ADELINO only with Rape, the Fiscal charged him with "Rape with
Illegal Detention". MARCELINA merely alleged that she was dragged from
the house of Norma Fernandez by means of force and intimidation and at
nighttime. On the other hand, the Information added that the accused were
"armed with bolos". The name of the barrio was also changed from Lopig to
Crossing. Lastly, the Information included the allegation that the crime of
Rape with Illegal Detention was committed with the "aggravating
circumstances that it was committed in an uninhabited place and with the
aid of armed men".
Of the six (6) persons accused, the FIVE OTHERS were never arrested, and
only ADELINO stood trial. The period of the offense was from December
14th to 17th, with the complaint having been filed on December 20th, or
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 80
barely three (3) days thereafter. With that time frame in mind, an analysis of
the Information will show the assumption that only ADELINO was
the principal  culprit while the FIVE OTHERS were either principals by
cooperation or accomplices. Thus, the clause "with" Lucio Malate, Pedro
Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it was
ADELINO who had dragged MARCELINA "with" the help of the FIVE
OTHERS. Both the complaint and Information also indicated that ADELINO
was the only one who committed the rape, while the FIVE OTHERS were
merely accomplices.
On June 2, 1966, before the arraignment of ADELINO, the Information was
amended to include the allegation that MARCELINA was detained and
deprived of liberty for a period of th0ree (3) days, which allegation could be
taken into account in connection with Illegal Detention 2 but not in
connection with Forcible Abduction. 3 Since according to Exhibit "C",
MARCELINA was "kidnapped" at midnight of December 14th, and ADELINO
was arrested in the morning of December 17th, or an interval of less than 72
Hours, it could not be correctly pleaded that MARCELINA was deprived of
liberty for three (3) days. 4
After the trial was concluded, ADELINO's lawyer submitted his Memorandum
on July 26, 1967, in which he specifically argued that "the prosecution did
not establish the elements of Rape and Illegal Detention as prescribed by
Articles 335 and 267 of the Revised Penal Code." It was only in the
Memorandum of the Fiscal, dated July 27, 1967, when the position was
taken that the crime which should be imputed to ADELINO is Rape with
Forcible Abduction. The prosecution's Memorandum stated:
Although the information is for Rape with Illegal Detention
instead of Rape with Forcible Abduction, yet from the body
of the information it could be clearly gleaned that the
elements of abduction are sufficiently alleged therein and
hence the accused can be convicted thereunder (People
vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (82-
1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of
Forcible Abduction with Rape with the aggravating circumstances of dwelling
and aid of armed men, and sentenced him to death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in
December, 1965, she and her mother were living in the house of her aunt,
Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as
a beautician. At 7:00 o'clock in the evening of December 14, 1965 while she
was then eating supper, ADELINO, whom she knew when they were "still
small", and who was her classmate in Grade II (1960), accompanied by the
FIVE OTHERS, entered the house and began drinking "sho hoc tong" which
they brought along. After the liquor had been fully consumed, Silvino Odal
broke the kerosene lamp causing complete darkness. She then ran to the
room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and
Adriano Odal, followed her, tried to extricate her from her mother's embrace
and dragged the two of them to the sala. Pedro Odal choked the mother's
neck thereby loosening her hold on the daughter and the four males, two of
whom were armed with bolos, forced her downstairs and by holding and
dragging her, brought her to the mountain about two kilometers from Barrio
Crossing. That was about 12 midnight. On the way, ADELINO slapped her
rendering her unconscious. She regained consciousness in a hut, with
ADELINO holding her hands, and removing her panty. She bit and kicked
him. Despite her struggle, ADELINO succeeded in having sexual intercourse
with her while his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who
owned the hut and that it was just a one-room affair where a woman and
two small children lived; that she and Appellant slept in that same room as
the woman, while the FIVE OTHERS slept near the kitchen. 5
At about 8:00 o'clock the following morning, December 15, ADELINO and
the FIVE OTHERS brought her to another mountain, 6 kilometers farther,
arriving there past twelve o'clock noon at the house of one called Ceferino
(also called Cipriano) who lived there with his family. She was kept in one
room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas,
still armed with bolos, drinking and guarding her. In the evening, ADELINO
had another sexual intercourse with her even though she bit and kicked him
and shouted for help which was to no avail as all present were relatives of
ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita
(daughter of Ceferino) the next day, because ADELINO threatened to kill her
if she did not. Her curling paraphernalia was taken by Adriano Odal, upon
ADELINO's instructions, from Norma Fernandez (her cousin) who gave the
equipment as she (Norma) was also threatened. MARCELINA and her
"captors" stayed in Ceferino's house for two days. In the morning of
December 17, two soldiers with her father, Alejo Cuizon, arrived. The
soldiers apprehended ADELINO while the FIVE OTHERS jumped down the
window and fled. Upon her father, she embraced him and cried. They all
returned to Barrio Crossing. She and her mother, Maria Fernandez, then
went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar
Provincial Hospital.
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 81
When cross-examined, Complainant admitted that Ceferino, his wife. and
seven children were living in the same hut where she was taken the second
time, which hut was about waist high from the ground, consisted of one
room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room
and the sala was a wall of split bamboos so that noise inside the room could
be heard clearly from the other side. 6
Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital,
declared that he examined MARCELINA on December 20, 1965 and issued a
Medical Certificate with the following findings:
1. No evidence of external injuries around the vulva or any
part of the body.
2. Hymen no intact, presence of old healed laceration at 4,
7, 12 o'clock.
3. Vagina easily admits two fingers.
4. Vaginal smear negative for spermatozoa 7
Explaining the "old healed laceration", the doctor stated that laceration may
have been caused by possible sexual intercourse or other factors, and if it
were intercourse, he estimated that it could have occured " say, two weeks
or one month" or possibly more. 8
For his part, ADELINO, aged 18, admitted having had carnal knowledge of
MARCELINA but denied having raped her. He claims that they eloped on
December 14 to 17, 1965 as previously planned, they having been
sweethearts since November 12, 1964. As such, they used to date in
Tacloban and "anything goes". MARCELINA's family used to have a house in
Barrio Crossing but now MARCELINA just stays in the house of her aunt,
Sofia, which is about five houses away from theirs. In the evening of
December 14, 1965, while Sofia, MARCELINA's mother and others were
eating, MARCELINA handed him a bag and beauty culture equipment
through the window, went downstairs, after which the two of them walked
to the mountains, to Ceferino Armada's house. Ceferino was a cousin of
ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year
old Narita, Ceferino's daughter. While in that hut, food was brought to them
by his sister, Nenita. MARCELINA curled Narita's hair the next day.
In the morning of December 17, 1965, Sets. Terado and Gacelos,
accompanied by MARCELINA's father, Alejo Cuizon, apprehended him for
having kidnapped MARCELINA. The latter ran to him and embraced him and
said she was to blame. notwithstanding, he was boxed by the soldiers as
instructed by MARCELINA's father and taken to Maulong PC Headquarters
for questioning. During the investigation, he was boxed and kicked and was
forced to sign a statement implicating the FIVE OTHERS as his companions
even if untrue. He did not know who attested to his statement as one Sgt.
Gacelos took the document elsewhere.
Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA
was allegedly forcibly brought the second time, corroborated that portion of
ADELINO's testimony regarding their stay in his house adding that
MARCELINA and ADELINO had told him that they had eloped; that
MARCELINA even offered to curl his daughter's hair (Narita's and
Concepcion's), and helped in house chores and in the threshing of palay,
while ADELINO helped in carrying palay because it was rainy.
The trial Court found the prosecutors version of the incident more worthy of
credence stating that Complainant had no improper motive to implicate
ADELINO in such a detestable crime as Rape.
On the basis of the evidence, testimonial and documentary, we find that the
guilt of ADELINO has not been established beyond reasonable doubt.
In crimes against chastity, the conviction or acquittal of an accused depends
almost entirely on the credibility of a complainant's testimony since by the
intrinsic nature of those crimes they usually involve only two persons — the
complainant and the accused. The offended party's testimony, therefore,
must be subjected to thorough scrutiny for a determination of its veracity
beyond reasonable doubt.
In the instant case, we find MARCELINA's charge that she was forcibly
abducted and afterwards raped by ADELINO in conspiracy with FIVE
OTHERS highly dubious and inherently improbable.
To start with, according to the medical findings, "no evidence of external
injuries was found around the vulva or any part of the body" of
Complainant, a fact which is strange, indeed, considering that Complainant
was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and
criminally abused. Physical evidence is of the highest order and speaks more
eloquently than an witnesses put together. We are also faced with the
medical finding of "old healed lacerations" in the hymen which, according to
the testimony of the examining physician would have occurred two weeks or
even one month before if said lacerations had been caused by sexual
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 82
intercourse. This expert opinion bolsters the defense that MARCELINA and
ADELINO had previous amorous relations at the same time that it casts
serious doubts on the charge of intercourse by force and intimidation.
Secondly, by Complainant's own admission, the first hut she was taken to
was a small one-room affair occupied by a woman and two small children.
Her charge, therefore, that she was ravished in that same room is highly
improbable and contrary to human experience.
Thirdly, from her own lips, Complainant testified that the second hut where
she was taken, that of Ceferino Armada, consisted of a small room
separated from the sala by a wall of split bamboos. Further, that Ceferino
with his wife and seven children all lived therein. It challenges human
credulity that she could have been sexually abused with so many within
hearing and distance. It is unbelievable, too, that under those circumstances
the FIVE OTHERS could have stood guard outside, armed with bolos and
drinking, while ADELINO allegedly took advantage of her. If rape were,
indeed, their malevolent intent, they would, in all probability, have taken
turns in abusing her. That they did not, indicates that there was, indeed,
some special relationship between MARCELINA and ADELINO. Furthermore,
with people around, and the hut constructed as it was, it would have been
an easy matter for MARCELINA to have shouted and cried for help. Surely,
the old man Ceferino, his wife and/or his children could not have been
insensible to her outcries notwithstanding their relationship to ADELINO. The
aphorism still rings true that evidence to be believed must not only come
from the mouth of a credible witness but must be credible in itself.
Additionally, Complainant admits that she even curled the hair of Narita, one
of Ceferino's daughters, a fact inconsistent with her allegation of "captivity".
That she was threatened with death if she did not accede to such an
inconsequential request defies credulity. The livelihood is that, as the
defense maintains, MARCELINA was not forcibly abducted but that she and
ADELINO had, in fact, eloped and that she had brought her beauty culture
paraphernalia with her, or, that she herself had sent for them from her
cousin Norma Fernandez voluntarily and not under threat from ADELINO.
The totality of the foregoing circumstances count with such great weight and
significance that they lend an aura of improbability and reasonable doubt to
the allegation that MARCELINA had been "kidnapped" or "illegally detained"
and that when she and ADELINO engaged in sexual intercourse, it was
because of force or intimidation exercised upon her. They are circumstances
that were overlooked by the trial Court and justify a reversal of its finding of
guilt as an exception to the established rule that the findings of fact of a trial
Judge based on the relative credibility of witnesses are entitled to great
respect and will not be disturbed by appellate Courts.
This case also constitutes an exception to the general belief that a young girl
would not expose herself to the ordeal of public trial if she were not
motivated solely by a desire to have the culprit who had ravished and
shamed her placed behind bars. As we view it, MARCELINA was confronted
with a paradoxical situation as a daughter of relative tender age who could
not shamefacedly admit to her parents that she had eloped and voluntarily
submitted to sexual intercourse, since that elopement must have met with
righteous indignation on the part of her parents. As a result, MARCELINA
was faced with no other choice but to charge ADELINO with rape or incur
the ire of her parents and social disrepute from a small community.
In respect of the alleged confession of ADELINO, suffice it to re-state that
"an extrajudicial confession made by an accused shag not be sufficient
ground for conviction unless corroborated by evidence of corpus
delicti. 9 Corpus delicti  is proved when the evidence on record shows that
the crime prosecuted had been committed. That proof has not been met in
the case at bar, the evidence establishing more of an elopement rather than
kidnapping or illegal detention or forcible abduction, and much less rape.
Moreover, ADELINO, aged 18, was by himself when being investigated by
soldiers, 10 without benefit of counsel nor of anyone to advise him of his
rights. Aside from his declaration that Ws confession was obtained through
maltreatment and violence, 11 it was also vitiated by a procedural irregularity
testified to by no less than prosecution witness Sgt. Pedro Gacelos to the
effect that he and room after he presented the statement to the Clerk of
Court, Mr. Rojas. 12 There is reason to believe, therefore that the so called
confession was attested without ADELINO's presence so that the latter
cannot be said to have duly subscribed and sworn to it.
It should also be noted that throughout the hearings before the trial Court, it
was assumed that ADELINO was being held responsible for the complex
crime of Rape with Illegal Detention. While it is true that an accused can be
punished for a crime described by the facts alleged in tile Information
despite a wrong designation of the crime in the preamble of the
Information, 13 yet, in capital cases, it should be desirable that, whenever a
discrepancy is noted between the designation of the crime made by the
Fiscal and the crime described by the facts pleaded in his Information. The
lower Court should call attention of the accused to the discrepancy, so that
the accused may be fully apprised of the nature and cause of the accusation
against him. This was not done in regards to ADELINO who all the time was
under the impression that he was being tried for Rape with Illegal Detention,
and not for Forcible Abduction with Rape. If ADELINO had known that he
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 83

was being tried for Forcible Abduction with Rape, he may have changed the How about the other girl?
strategy or tactics of his defense. Not that it could be said he would have
done so; but he should have been advised he had the right, and given the ATTY. BOHOL
opportunity, to do so.
Narita Armada will substantially be
Again, one of the rights of an accused is "to have compulsory process issued corroborative, Your Honor.
to secure the attendance of witnesses on his behalf. 14 ADELINO had stated
that, while MARCELINA was in the house of Ceferino Armada, she curled the
COURT
hair of Narita. one of the latter's children, as well as the hair of other girls in
the vicinity.
Suppose the two witnesses do not arrive
tomorrow, for which this case is set
ADELINO wanted to have Narita testify on his behalf, and a subpoena had
also?
been issued to her. But instead of taking effective steps to have Narita
brought to Court, the lower court gave responsibility for Narita's attendance
to the defense, expressly stating that, if the defense was not able to bring ATTY. BOHOL
her to the Court, her testimony will be dispensed with. The record shows:
If we receive information and find that
ATTY. BOHOL those witnesses could really not come
for this case, Your Honor, I will be
constrained to submit the case for
I appear as counsel for the accused. Up
decision based on the testimony of the
to now, Your Honor, the witnesses we
accused. However, Your Honor, if it will
have been expecting have not yet
be all right with the Honorable Court
arrived. This representation, with the
and we find that there is hope that
consent of the Clerk of Court have wired
within this week Ceferino Armada could
the Chief of Police of Sta. Rita, Samar to
come here, in view of the distance, I
bring Ceferino Armada and Narita
pray before the Honorable Court that we
Armada tomorrow for the hearing,
be given time within this week to
continuation of this case for those
present Ceferino Armada, and upon his
persons mentioned to testify, your
failure, submit the case for decision
Honor, for the accused. We pray, Your
Honor, that we be given time to hear
from the Chief of Police to bring those COURT
persons tomorrow, Your Honor.
The Court will not allow that anymore,
COURT anyway this case is set for tomorrow.
The Court wail grant the postponement
today on condition that any witness not
What will be the nature of the
presented tomorrow will be considered
testimonies of those witnesses.
waived Afterall as you have manifest, 4
their testimonies will be corroborative.
xxx xxx xxx
xxx xxx xxx
COURT
 C o n s ti t u ti o n a l L a w I I S e c . 1 4 a n d 1 6 P a g e | 84

COURT
What I mean is that you should have
taken the necessary precaution for the
attendance of your witness today
considering that there is a subpoena for
the witnesses.-
ORDER - for the reason that accused
have no more witnesses to present
today, the trial of this case is hereby
Postponed for tomorrow, July 26, 1967
at 8:30 A.M., with the warning that
witnesses not presented during that day
shall be considered waived. 15
Considering that this case involved a prosecution for a capital offense, the
lower Court acted precipitously in not having Narita brought to Court, by
ordering her arrest if necessary ADELINO was deprived of his right "to have
compulsory process issued to secure the attendance of witnesses on his
behalf."
Crucial questions should also have been asked by the trial Court of
witnesses. MARCELINA testified before the lower Court on December 1,
1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the
complaint against ADELINO, testified:
Q. Was that investigation of M Cuizon
reduced to writing?
Further, there was possibility that ADELINO and MARCELINA had really been
sweethearts. The lower Court could have asked MARCELINA if she realized
that, charging ADELINO with Rape with Illegal Detention, the latter could be
sentenced to death. If that had been explained to her clearly by the lower
Court, she might then have admitted that she was neither raped nor
"kidnapped" nor illegally detained.
MARCELINA could had been examined on the two matters mentioned above,
with the Court excluding the public from the hearing under the provisions of
Rule 119, Section 14. MARCELINA might have testified without feeling the
pressure of her relatives or other persons, if such pressure had in fact
existed.
It may not be amiss to state then that just as in pleas of guilty where a
grave offense is charged trial Judges have been enjoined to refrain from
accepting them with alacrity but to be extra solicitous in seeing to it that an
accused fully understands the import of his plea, so also, in prosecutions for
capital offenses, it behooves the trial Courts to exercise greater care in
safeguarding the rights of an accused. The trial Judge should also take a
more active role by means of searching questions in the examination of
witnesses for the ascertaintment of the truth and credibility of their
testimonies so that any judgment of conviction imposing the supreme
penalty may rest on firm and unequivocal grounds. The life and liberty of an
individual demand no less.
WHEREFORE, upon reasonable doubt, the judgment appealed from imposing
the death penalty, is reversed and the appellant, Adelino Bardaje, acquitted
of the crime with which he is charged. His immediate release is ordered
unless lie is held on other charges.

Costs de oficio.
A. Yes, Sir. 16

SO ORDERED.
It would have been advisable if the lower Court had right then and there
asked for the production of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had
sexual intercourse previous to December 14th. On the other hand, ADELINO
had testified that he and MARCELINA used to go together to Tacloban, and
while there several times, "we had sexual intercourse because she likes
it." 17 Considering the possible infliction of the death penalty on ADELINO,
the lower Court could have asked MARCELINA if she had had sexual
intercourse prior to December 14th and, if so, if it was with ADELINO.